^ 



I . ^^ 






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J 



' CONSTITUTIONAL VIEW 



OF Tnn I, ATE 



WAR BETWEEN THE STATES; 



CAUSES, CHARACTER, COSDUCT AND RESULTS. 



PRESENTED IN A 



8EEIES OF COLLOQUIES 
AT LIBERTY HALL. 

BY 

ALEXANDER H. STEPHENS. 



Times change and men often change with them, but principles nevorl 



IN TWO VOLUMES. 

-\r o n,. I. 

NATIONAL PUBLISHING COMPANY, 

PHILADELPHIA, PA. ; CINCINNATI, OHIO ; ATLANTA, GA 

ZEIGLER, McCURDY & CO., 

CHICAGO, ILL.,- ST. LOUIS, MO. 



.a 



<^ 



oc" \'b 






Entered accorJiug to Act of Congress, iu the year 1868, by 

J. I?. JONES, 

In the Clerk's Office of the District Court of the United States, iu and for 

the Eastern District of Pennsylvania. 



// 



/^- 




DEDICATION 



TO 

All true friends of tlie Union under the ConbtiLUtion 
of the United States, throughout their entire limits, with- 
out regard to present or past party associations ; and to 
all true friends of Constitutional Liberty, the world over, 
now and forever, — especially to all, everywhere, who maj , 
now or hereafter, look to the Federative System, between 
neighboring Free Democratic States, as the surest means 
of saving Mankind from ultimate universal Monarchical 
Rule, — this Work, with all the earnestness of his nature, 
which the great subject thoroughly awakens, is hereby, 
not formally, but most solemnly and sacredly, dedicated 
by the 



AUTHOE. 



Liberty Hall, 

Crnvifordi-iUe., Ga., 

16 i)ec'r, 1867. 



LIST OF ILLUSTRATIONS. 



LIBEETY HALL To Face Title Page 



THOMAS JEFFEKSOI^... 
GEOEGE WASHINGT02^. 
DANIEL WEBSTEE . . . . . . 

JOHN C. CALHOUN 

HENEY CLAY 

ANDEEW JA.CKSON 



Page 94 
156 
301 
343 
438 
'175 



CONTENTS. 



INTRODUCTION 7 

COLLOQUY L 

MR. STEPHENS'S UNION SPEECH OF 1860 THE SUBJECT ON WHICH THE 
DISCUSSION BEGINS — THE MOST THOROUGH DEVOTION TO THE UNION 
CONSISTENT WITH THE RECOGNISED SOVEREIGNTY OP THE SEVERA'Ii 
STATES — THE UNION ITSELF IS A UNION OF SOVEREIGN STATES — THE 
WHOLE SUBJECT OF THE WAR, ITS CAUSES, NATURE, AND CHARACTER, 
OPENED UP BY A QUESTION PROPOUNDED, HOW MR. STEPHENS WITH 
HIS SENSE OF DUTY COULD GO WITH HIS STATE ON SECESSION AGAINST 
THE UNION ? — BEFORE GOING INTO A FULL ANSWER TO THIS QUESTION, 
TWO PRELIMINARY OBSERVATIONS MADE, ONE RELATING TO CITIZEN- 
SHIP, THE OTHER TO THE SUPREME LAW OF THE LAND — CITIZENSHIP 
PERTAINS TO THE STATES — OBEDIENCE IS DUE TO THE SUPREME LAW 
WHILE IT IS LAW, BUT ALLEGIANCE IS DUE TO THE PARAMOUNT AU- 
THORITY — OBEDIENCE TO LAW WHILE IT IS LAW, AND ALLEGIANCE 
WHICH IS DUE TO THE PARAMOUNT AUTHORITY WHICH CAN RIGHT- 
FULLY MAKE AND UNMAKE ALL LAWS, CONSTITUTIONS AS WELL AS 
OTHERS, ARE VERY DIFFERENT THINGS — THE QUESTION PROPOUNDED 
REQUIRES A THOROUGH INQUIRY AS TO WHERE, UNDER OUR SYSTEM, 
THIS PARAMOUNT AUTHORITY RESIDES 17 

COLLOQUY II. 

rNQUIRY INTO THE NATURE OF THE UNION— A BRIEF HISTORICAL 
SKETCH — THE DECLARATION OF INDEPENDENCE — THE FIRST CON- 
FEDERATION — A COMPACT BETWEEN SOVEREIGN STATES — JUDGE STORY 
REVIEWED 50 

COLLOQUY III. 

firSTORY OF THE UNION TRACED — ANALYSIS OF THE ARTICLES OF CON- 
FEDERATION — THE DEFECTS IN THEM TREATED OF — THE CALL OP THE 
FEDERAL CONVENTION TO REMODEL THEM — THE SOLE OBJECT OP THIS 
CONVENTION WAS TO REVISE THE ARTICLES OP CONFEDERATION AND 
NOT TO CHANGE THE BASIS OR CHARACTER OF THE UNION — THIS 
APPEARS PROM THE CALL ITSELF AS WELL AS THE RESPONSES OF THE 
STATES TO IT — THERE WAS NO INTENTION TO CHANGE THE FEDERAL 
CHARACTER OP THE UNION 83 

3 



CONTENTS. 



COLLOQUY IV. 

THE NATURE OF THE UNION NOT CHANGED UNDER THE C0N8TITU1 ION- 
ULTIMATE SOVEREIGNTY UNDER IT RESIDES WHERE IT DID UNDER 
THE CONFEDERATION — JUDGE STORY ON THE FIRST RESOLUTION OP 
THE FEDERAL CONVENTION — THE CONSTITUTION, AS THE CONFEDERA- 
TION, IS A GOVERNMENT OF STATES AND FOR STATES — THIS APPEARS 
FROSI THE PREAilBLE ITSELF — THE UNION OF THE STATES WAS CON- 
SOLIDATED BY THE CONSTITUTION, AND NOT ARROGATED AS IT WOULD 
HAVE BEEN BY A GENERAL MERGER OP THE STATE SOVEREIGNTIES — • 
IT FORMS A CONFEDERATED REPUBLIC — SUCH A REPUBLIC IS FORMED 
BY THE UNION OF SEVERAL SMALLER REPUBLICS EACH RESPECTIVELY 
PUTTING LIMITED RESTRAINTS UPON THEMSELVES BY VOLUNTARY 
ENGAGEMENTS WITHOUT ANY IMPAIRMENT OF THEIR SEVERAL SOV- 
EREIGNTIES, ACCORDING TO MONTESQUIEU AND VATTEL 116 



COLLOQUY V. 

THE CONSTITUTION OP THE UNITED STATES — ANALYSIS OP ITS PRO- 
VISIONS, MUTUAL COVENANTS, AND DELEGATIONS OP POWER, AS IN 
THE ARTICLES OP CONFEDERATION, 171 



COLLOQUY VI. 

THE ACTION OP THE SEVERAL STATES ON THE CONSTITUTION — DEBATES 

IN THE SEVERAL STATE CONVENTIONS— COMMENTS THEREON 207 



COLLOQUY VIL 

WEBSTER ON THE CONSTITUTION— COMMENTS 298 

COLLOQUY VIIL 

CALHOUN ON THE CONSTITUTION — COMMENTS , 343 



COLLOQUY IX. 

SUBJECT CONTINUED — WEBSTER'S SPEECH BEFORE THE SUPREME COURT 
— HIS LETTER TO BARING, BROTHERS & CO— HIS CAPON SPRINGS SPEECH 
— THE SUPREME COURT ON STATE SOVEREIGNTY — INTERNATIONAL 
COMITY — DIFFERENCE BETWEEN THE UNION OP THE STATES AND THE 
UNION OP ENGLAND AND SCOTLAND — EXPOSITION OF THE CONSTITU- 
TION BY THE SENATE IN 1838 — CALHOUN'S PRINCIPLES OP 1833 SUS- 
TAINED BY TWO THIRDS OP THE STATES IN 1838— EXPOSITION OF THE 
CONSTITUTION BY THE SENATE IN 18G0 — JEFFERSON DAVIS 339 



CONTENTS. 



COLLOQUY X. 

NULLIFICATION — GENEllAL JACKSON ON THE UNION — JEFFERSON ON 
THE UNION — KENTUCKY RESOLUTIONS OP 1798 — SETTLEMENT OF THE 
NULLIFICATION ISSUE — THE DEBATES IN THE SENATE — WILKINS, 
CALHOUN, GRUNDY, BIBB AND CLAY — THE COMPROMISE ON THE PRO- 
TECTIVE POLICY OF 1833 — THE WORKINGS OF THE FEDERAL SYSTEM 
UNDER THE PRINCIPLES ON WHICH THAT COMPROMSIE WAS MADE — 
THE GREAT PROSPERITY THAT FOLLOWED — NO PRESIDENT PROM JEF- 
FERSON TO LINCOLN ELECTED, WHO DID NOT HOLD THE GOVERNMENT 
TO BE A COMPACT BETWEEN SOVEREIGN STATES— MADISON, MONROE, 
JOHN QUINCY ADAMS, JACKSON, VAN BUREN, HARRISON, POLK, TAYLOR, 
PIERCE, AND BUCHANAN, ALL SO HELD IT TO BE — THE SUPREME COURT 
NOT THE UMPIRE BETWEEN THE STATES AND THE GENERAL GOVERN- 
MENT — MADISON, BIBB, MARSHALL, AND LIVINGSTON ON THIS SUBJECT 
— GENERAL JACKSON'S EXPLANATION OF THE DOCTRINES OF THE 

. PROCLAMATION — HE HELD THE CONSTITUTION TO BE A COMPACT 
BETWEEN SOVEREIGN STATES — HIS FAREWELL ADDRESS 419 



COLLOQUY XL 

• 

THE GREAT TRUTH ESTABLISHED THAT THE CONSTITUTION IS A COMPACT 
BETWEEN SOVEREIGN STATES— THE GOVERNMENT OP THE UNITED 
STATES IS STRICTLY A FEDERAL GOVERNMENT — EACH STATE FOR 
ITSELF HAS THE RIGHT TO JUDGE OP INFRACTIONS AS WELL AS THE 
MODE AND MEASURE OP REDRESS— THE RIGHT OF A STATE TO WITH- 
DRAW FROM THE UNION UPON BREACH OP THE COMPACT BY OTHER 
PARTIES TO IT SPRINGS FROM THE VERY NATURE OP THE GOVERNMENT 
—THE COMPACT WAS BROKEN BY THIRTEEN STATES OP THE UNION — 
WEBSTER, STORY, TUCKER, RAWLE, DE TOCQUEVILLE, WADE, GREE- 
LEY AND LINCOLN UPON THIS RIGHT TO WITHDRAW OR SECEDE IN 
eUCH CASE *"" 



COLLOQUY XIL 

CONCLUSION OP THE ARGUMENT— IS A CONFEDERATED GOVERNMENT TOO 
WEAK TO SECURE ITS OBJECTS— ON THE CONTRARY, IS IT NOT THE 
STRONGEST OP ALL GOVERNMENTS— THE OPINIONS OP MR. JOHN 
QUINCY ADAMS AND MR. JEFFERSON— IN SECESSION WAS INVOLVED 
THIS GREAT RIGHT, WHICH LIES AT THE FOUNDATION OP THE FED- 
ERATIVE SYSTEM OP GOVERNMENT— IT WAS OF INFINITELY MORE 
IMPORTANCE TO THE SOUTHERN STATES THAN SLAVERY, SO-CALLED, . 
WITH ITS TWO THOUSAND MILLIONS OP CAPITAL INVERTED IN THAT 
INSTITUTION "^-^ 



g CONTENTS. 

APPENDIX A. 

THE UNANIMOUS DECLAKATION OF THE THIRTEEN UNITED STATES OP 



AMERICA 



545 



APPENDIX B. 

ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE 



STATES. 



CONSTITUTION OF THE 



549 

APPENDIX C. 

UNITED STATES OP AMERICA 557 



APPENDIX D. 

KENTUCKY RESOLUTIONS OF 1798 ' 570 

APPENDIX E. 

VIRGINIA RESOLUTIONS OF 1798-99— DEFINING THE RIGHTS OF THE 
STATES AND MADISON'S REPORT THEREON— IN THE VIRGINIA HOUSE OP 
DELEGATES, FRIDAY, DEC. 21, 1798 ..•.^. 576 

APPENDIX F. 

EXTRACTS FROM AN ADDRESS BY THE HON. JAMES P. HOLCOMBE, DELIV- 
ERED BEFORE THE VIRGINIA STATE AGRICULTURAL SOCIETY, AT ITS 
SEVENTH ANNUAL MEETING, NOVEMBER 4, 1858 — 621 

APPENDIX G. 

A LECTURE BY HON. ROBERT TOOMBS, DELIVERED IN THE TREMONT 
TEMPLE, BOSTON, MASSACHUSETTS, JANUARY 24, 1856— SLAVERY— ITS 
CONSTITUTIONAL STATUS— ITS INFLUENCE ON THE AFRICAN RACE AND 
SOCIETY ^^^ 



INTRODUCTION. 



TuE purpose of the writer of tliis work is to present a Con- 
fititutional view of the late War between the States of " the 
Union," linown as the " United States of America." 

The view is intended to embrace a consideration of the causes, 
the character, conduct and results of this War, in relation to the 
nature and character of the joint Government of these States ; 
and of its effects upon the nature and character of this Govern- 
ment, as well as of its effects upon the separate Governments, 
Constitutions and general internal Institutions of the States them- 
selves. The subject is one that does not fall clearly within the 
domain of History, in the usual acceptation of that word. The 
design is rather to deal with the materials of History than to 
supply them. It is not so much to present any portion of Ameri- 
can History, as it is, by Historical analysis, to show what are 
the principles embodied in those systems of Government estab- 
lished, by the Anglo-Saxons, on this Continent, and to illustrate 
their singularly happy adaptation, so long as adhered to, to the 
situation and character of the North American States. 

The chief usefulness of all History consists in the lessons it 
teaches, in properly estimating the compound result of the 
action of the principles of any system of Government upon 
human conduct, and the counter-action of human conduct upon 
these principles, in effecting those moral and political changes 
which mark the type, as well as progress, of civilization, at all 
times, and in all countries. Mankind cannot live without So- 
ciety or Association. Organized communities, with Govern- 
ments of some sort, are no more universal than essential to the 
existence of the Genus Homo, with all its Species and Yarieties, 
in every age and clime. The organic laws, which enter into the 



8 INTKODUCTION. 

Structure of any such Association, Society. Community, Com- 
monwealth, State, or Nation, by whatever name it may be 
designated^ form w4iat may be styled the Constitution of that 
particular Organism. These are the elementary principles, from 
which spring the vital functions of the Political Being, thus 
brought into existence, and upon which depend, mainly, tba 
ihture development of the Organism, and the character, as well 
as standard, of its civilization. But, while these Struclural 
laws act upon Society, in its emlryo state, as well as in shaping 
its subsequent development. Society is also constantly acting 
back upon them. As individual life, in all its forms and 
stages, is said to be the result of a war between opposing 
agencies, so it is wdth the political life or existence of every 
body politic. 

Between the primary laws, from which Society first springs, 
and takes its first form and shape, and the internal movements 
of Society itself, in its progress, there are continued action and 
counter-action, producing endless changes, from slight innova- 
tions or alternations to entire Eevolutions. With these come, 
either for better or worse, entire changes of the type, as well as 
standard, of civilization.* History, for the most part, has con- 



* " The Institutions of a ppople, political and moral, are the matrix, in which 
liie germ of their organic structure quickens into life, takes root, develops ia 
form, nature and character. Our Institutions constitute the basis — the matrix — 
fi-om which spring all our characteristics of development and greatness. Look 
at Greece! Thereis the same fertile soil; the same blue sky; the same inlets 
and harbors; the. same J3gean ; the same Olympus; — there is the same land, 
where Homer sung; where Pericles spoke; — it is, in nature, the same old 
Greece ; but it is 'living Greece no more I' 

" Descendants of the same people inhabit the country ; yet, what is the reason 
of this mighty difference? In the midst of present degradation, we see the 
glorious fragments of ancient works of art — temples, with ornaments and 
tnscriptions that excite wonder and admiration — the remains of a once high 
order of civilization, whicli have outlived the language they spoke 1 Upon 
them all, Icbabod is written — their glory has departed I Why is this so? -1 
itnswer this, their Institutions have been destroyed ! These were but the fruits 
(>f their forms of Government — the matrix from which their grand development 
sprung. And when once the Institutions of our people shall have beeu 
destroyed, there is no earthly power that can bring back the Promethean 
spark, to kindle them here again, any more than in that ancient land of elo- 
quence, poetry and song I" — Author's Union Speech^ 14 November, 1860. 



\ 

INTRODUCTION. 9 

fined itself, from the earliest times, to presenting but one side of 
this complex subject. It has devoted itself so exclusively to 
the consideration of human action only, that this has become 
in general estimation, if not by common consent, its peculiar 
Province. Hence, it treats chiefly of men, their deeds, their 
achievements, their characters, their motives, their patriotism 
or ambition, and the impress their actions make upon Society. 

The opposite workings and effects of principles, or the results 
of their neglect^ upon the very actions of men, of which they 
treat so largely, receive but slight, if any attention, even in the 
most graphic descriptions of the most terrible convulsions, 
which, if traced to their etrigin, would often, and most frequently, 
perhaps, be found to arise, as effect follows cause, from these 
very principles or organic laws themselves. Those writino-s 
upon such subjects, whether considered as Historical or other- 
wise, are most to be prized as contributions to the general stock 
of knowledge, which treat of both of these elements of human 
destiny, together ; and, in the progress of any political organ- 
ism, trace, with Philosophic hand, the connection between them, 
and the reciprocal bearing they have upon each other. 

In the prosecution of the design of the writer, it has not been 
his purpose to treat, at all, of men or their actions, civil 01 
military, further than they relate to, or bear u])on, those prin- 
ciples which are involved in the subject under consideration. 
Principles constitute the subject-matter of his work. Times 
change, and men often change with them, but principles never! 
ThTese, like truths, are eternal, unchangeable and immutable ! 

Most of the diseases with which the human system is afflicted, 
proceed, as natural and inevitable consequences, from the viola- 
tion or neglect of some one or more of the vital laws of its 
organization. All violent fevers and convulsions have their 
origin in this, though the real cause may be too occult to be 
ascertained by the most skilful Pathologist. So with political 
organizations, whether simple or complex, single or Federal. 
No great disorders ever occur in them without some similar 
real cause. 

It is a postulate, wath many writers of this day, that the late 
W^ar was the result of two opposing ideas, or principles, upon 



10 INTRODUCTION. 

tlie subject of African Slavery. Between tliese, acrording to 
their theory, sprung the " irrepressible conflict," in principle, 
which ended in the terrible conflict of arms. Thor;o who 
assume this postulate, and so theorize upon it, are but ?uper 
ficial observers. 

That the AVar had its origin in 02)posinrj princijjles, wlr.ch, in 
their action upon the conduct of men, produced the ultiuiate col- 
lision of arms, may be assumed as an unquestionable fact. But 
the opposing principles which produced these results in physical 
action were of a veiy diflbrent character from those assumed in 
the postulate. They lay in the organic Structure of the Govern- 
ment of the States. The conflict in principle arose from different 
and opposing ideas as to the nature of what is known as the 
General Government. The contest was between those wlio held 
it to be strictly Federal in its character, and tliose who maintained 
that it was thoroughly National. It was a strife between the prin 
ciples of Federation, on the one side, and Centralism, or Con- 
solidation, on the other. 

Slavery, so called, was but the question on which these antago- 
nistic principles, which had been in conflict, from the beginning, 
on divers otlicr questions, were finally brought into actual and 
active collision with each otlier on the field of battle. 

Some of the stror jest Anti-slavery men who ever lived vvero 
ife)n the side of those who opposed the Centralizing principles 
which led to the War. Mr. Jeflerson was a striking illustra 
tion of this, and a prominent example of a very large class of 
both sections of the country, who were, most unfortunately, 
brought into hostile array against each other. No more earnest 
or ardent devotee to the emancipation of the Black race, upon 
humane, rational and Constitutional principles, ever lived than 
he was. Not even Wilberforce himself was more devoted to 
that cause than Mr. Jeflerson was. And yet Mr. Jeflerson, 
though in private life at the time, is well known to have been 
utterly oj'posed to the Centralizing principle, when first pre- 
sented, on tlds question, in the attempt to impose conditions and 
restrictions on the State of Missouri, when she applied for 
admission into the Union, under the Constitution. lie lo<ked 
upon the movement as a political manoeuvre to bring this deli- 



INTRODUCTION. 



11 



eate sul)ject (and one that lay so near liis heart) into the Federal 
Councils, with a view, by its agitation in a forum where it did 
not properly belong, to strengthen the Centralists in their efforts 
to revive their doctrines, which had been so signally defeated 
on so many other questions. Tlie first sound of their move- 
ments on this question fell upon his ear as a " fire bell at night." 
The same is true of many others. Several of the ablest oppo- 
nents of that State Kestriction, in Congress, were equally well 
known to be as decidedly in favor of emancipation as Mr. 
Jefferson was. Amongst these, may be named Mr. Pinkney 
and Mr. Clay, from the South, to say nothing of those men from 
the North, who opposed that measure with equal firmness and 
integrity. 

It is the fashion of many writers of the day to class all who 
opposed the Consolidationists in this^ their first step, as well as 
all who opposed them in all their subsequent steps, on this 
question^ with what they style the Pro-Slavery Party. No 
greater injustice could be done any public men, and no greater 
violence be done to the truth of History, than such a classifica- 
tion. Their opposition to that measure, or kindred subsequent 
ones, sprung from no attachment to Slavery ; but, as Jefterson's, 
Pinkney 's and Clay's, from their strong convictions that the 
Federal Government had no rightful or C nstitutioual control 
or jurisdiction over such questions; and that no such action, as 
that proposed upon them, could be taken by Congress without 
destroying the elementary and vital principles upon which the 
Government was founded. 

By their acts, the\^ did not identify themselves with the l*ro 
Slavery Party (for, in truth, no such Party had, at that time, oi 
at any time in the History of the Country, any organized ex- 
istence). They only identified themselves, or took position, 
with those who maintained the Federative character of the 
General Government. 

In 1850, for instance, what greater injustice could be done 
any one, or what greater violence could be done the truth of 
History, than to charge Cass, Douglas, Clay, Webster and 
Fillmore, to say nothing of others, with being advocates of 
Slavery, or foll'^wing in the lead of the Pro-Slavery Party, 



12 IXTrtODUCTTOX. 

because of their support of what were called the adjustment 
measures of that year ? 

Or later still, out of the million and a half, and more, of the 
votes cast, in the Northern States, in 1860, against Mr. Lincoln 
how many, could it, with truth, be said, were in favor of Slavery, 
or even that legal subordination of the Black race to the White, 
which existed in the Southern States? 

Perhaps, not one in ten thousand! It was a subject, with 
which, they were thoroughly convinced, they had nothing to do, 
and could have nothing to do, under the terms of the Union, 
by which the States were Confederated, except to carry out, 
and faithfully perform, all the obligations of the Constitutional 
Compact, in regard to it. 

They simply arrayed themselves against that P'\rty which 
had virtually hoisted the banner of Consolidation. The con- 
test, so commenced, which ended in the War, was, indeed, a 
contest between opposing principles ; but not such as bore upon 
the policy or impolicy of African Subordination. They were 
principles deeply underlying all considerations of that sort. 
They involved the very nature and organic Structure of the 
Government itself. The conflict, on this question of Slavery, in 
the Federal Councils, from the beginning, was not a contest 
between the advocates or opponents of that peculiar Institu- 
tion, but a contest, as stated before, between the supporters 
of a strictly Federative Government, on the one side, and a 
thoroughly National one, on the other. 

It is the object of this work to treat of these opposing prin- 
ciples, not only in their bearings upon the minor question of 
Slavery, as it existed in the Southern States, and on which they 
were brought into active collision with each other, but upon 
others (now that this element of discord is removed) of far more 
transcendant importance, looking to the great future, and the 
preservation of that Constitutional Liberty which is the birth- 
right of every American, as well as the solemnly- guaranteed 
right of all who may here, in this new world, seek an asylum 
from the oppressions of the old. 

The general scope of the work is intended to embrace : — 

First. An inquiry into the nature of the Government of the 



INTRODUCTION. 13 

United States, or the nature of that Union whicli exists b(itween 
the States under the Constitution, with the causes, or conflict 
of principles, wliich led to a resort to arms ; and the character 
of the "War, thus inaugurated. 

Secondly. The conduct of the War on both sides, so far as it 
affected Constitutional principles, with its final results upon 
the organic structure of the entire system of American Demo- 
cratic Free Institutions. 

It was the writer's intention, at first, to embody the whole in 
one volume ; but, as he progressed, he found the materials so 
massive, and the subject so vast, that it was utterly impossible 
to do justice to the great theme in so small a compass. 

He finds quite enough for one volume wrought up under 
the first part of his design. This he has concluded to give to 
the public in advance of what may follow hereafter ; especially, 
as what is now prepared is perfectly complete in itself, upon the 
general head on which it treats ; that is, the nature of the Gov- 
ernment of the United States, and those organic principles from 
which the conflict arose. The remaining portions of his design 
will be embraced in an additional volume, to be issued as soon 
as circumstances will permit. 

As to the manner of execuvion, or the form in which the 
view is presented, a few words may be proper. The method 
adopted is the Colloquial style. This manner of treating sub- 
jects of this character is, as tar as he knows, Vv^ithout precedent 
in this age and country. He was aware, therefore, of the diffi- 
culties to be encountered on this score. He felt the risk attend- 
ing putting forth any thing, in the form of a Book, which, in its 
departure from the usual mode of treating subjects of the char- 
acter in hand, might not be in accordance with the ruling taste 
of the day. He remembered, however, that such subjects, in 
remoter times, were thus treated by the master writers of 
antiquity. 

Plato and Cicero are illustrious examples. Without any 
purpose to imitate these classic models, it was enough for him 
to know that the plan adopted by him, in this particular, was 
not without well-established precedents in other ages and 
countries 



14 INTRODUCTION. 

But tlae real controlling reason wliicli determined his course 
in the matter was that it was in strict accordance with nature. 
If writing be an art, and if art, in this line, consists in present- 
ing to the mind real images of nature, through the medium of 
language, as painting does by colors, then he has not deviated 
from a proper rule of taste, so far as relates to the method 
adopted. For these Colloquies are but an elaboration of con- 
versations actually had at his residence, as they purport, in 
substance, to be. 

It so happened, in the spring, and early part of the summer, 
of 1867, while the -gaiter was at his home, devoting his mind, 
in that quiet retreat, to the general subjects herein discussed, 
with a view to the preparation of a work of some sort, upon 
them, for publication, that he was visited, at different times, by 
great numbers of his old friends, Irom the Northern States, 
representing almost every shade of opinion upon the present 
state of public affairs. During these visits, conversations were 
had, and very thoroughly indulged in, with perfect good temper, 
on all sides, upon all these subjects. These actual Colloquies, 
with rare exceptions, began just as the following pages begin; 
•and they usually took the same course. 

As this was so general, and almost universal, it seemed to 
indicate that line or mode of writing, on the same subjects, 
which would be the most natural for the entertainment of the 
great majority of those who might be disposed to read any 
thing that might be written upon them. 

Hence the conclusion as to the mode of treatment now pre- 
sented. Whether it will be acceptable to modern taste, the test 
of experiment must disclose. It certainly enabled the writer to 
present the views of both sides more clearly and forcibly, upon 
many points, than he could have done in a more stately or didac- 
tic form. 

The only fiction in the machinery is in the names of the 
parties, and in connecting the whole discussion with the same 
persons. The real names of the parties, for obvious reasons, 
are not given. Others, and entiielj fictitious ones, are substi- 
tuted. For unity in the general plan, three representative 
characters, thus selected are retained throughout the discussion. 



INTRODUCTION. 15 

Judge Bynum, from Massachusetts, represents, throughout, 
that class of visitants who belong to what is called the Kadical 
oranch of the Eepublican Pai y. Professor Nortox, from 
Connecticut, represents, in like manner, those of that class 
known as the Conservative branch of the same Party ; while 
Major Heister, from Pennsylvania, represents those of that 
class known as War Democrats. 

The living prototypes of each of these fictitious representa- 
tives were in the actual conversations had; and the writer 
trusts, when the real characters shall see, if they ever do, the 
reports, now given to the public, of ihe actual Colloquies which 
took place, and the parts they took in them, that they will not 
feel that any injustice has been done to them or their positions. 

With this explanation, let the reader imagine all the parlies 
in the Portico, at Liberty Hall, the day after the arrival of the 
guests, and after the usual salutations and inquiries, upon the 
reunion of old acquaintances and personal friends — especially 
upon such a re-union, after years of separation, and these years 
marked by such scenes as marked those of the separation in 
this case — and he will be fully prepared for the curtain to rise, 
and to be entertained, or not, with what follows in the Collo- 
quies, according to his taste and judgment. 



C0x\8TITUTI0?(AL VIE¥ OF THE ¥All 



COLLOQUY I. 

MR. STEPHENS'S UNION SPEECH OP 1860 THE SUBJECT ON WHICH THK 
DISCUSSION BEGINS — THE MOST THOROUGH DEVOTION TO THE UNION 
CONSISTENT "WITH THE RECOGNISED SOVEREIGNTY OP THE SEVERAL 
STATES — THE UNION ITSELF IS A UNION OP SOVEREIGN STATES — THE 
WHOLE SUBJECT OP THE WAR, ITS CAUSES, NATURE, AND CHARACTER, 
OPENED UP BY A QUESTION PROPOUNDED, HOW MR. STEPHENS WITH 
HIS SENSE OP DUTY COULD GO WITH HIS STATE ON SECESSION AGAINST 
THN UNION ? — BEFORE GOING INTO A FULL ANSWER TO THIS QUESTION, 
TWO PRELIMINARY OBSERVATIONS MADE, ONE RELATING TO CITIZEN- 
SHIP, THE OTHER TO THE SUPREME LAW OP THE LAND — CITIZENSHIP 
PERTAINS TO THE STATES — OBEDIENCE IS DUE TO THE SUPREME LAW 
WHILE IT IS LAW, BUT ALLEGIANCE IS DUE TO THE PARAMOUNT AU- 
THORITY — OBEDIENCE TO LAW WHILE IT IS LAW, AND ALLEGIANCE 
WHICH IS DUE TO THE PARAMOUNT AUTHORITY WHICH CAN RIGHT- 
FULLY MAKE AND UNMAKE ALL LAWS, CONSTITUTIONS AS WELL A3 
OTHERS, ARE VERY DIFFERENT THINGS — THE QUESTION PROPOUNDED 
REQUIRES A THOROUGH INQUIRY AS TO WHERE, UNDER OUR SYSTEM, THIS 
PARAMOUNT AUTHORITY RESIDES. 

Judge Bynum. We were all at the North very mucli 
surprised as well as disappointed, Mr. Stephens, at your 
course on Secession. 

Mr. Stephens. Why so ? 

Judge Bynum. Because we were led to believe, from 
your speech against that measure on the 14tli of No- 
vember, 1860, before the Legislature of your State ia 
Milledgeville, that you were really and thoroughly for 
the Union. We regarded your speech on that occa- 
2 17 



18 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

sion as one of the best Union speeches ever made. 
There was a tone of earnestness and sincerity in it 
which created that impression. It was published in all 
our leading papers, and was almost literally spread 
broadcast throughout the whole country. From that 
speech especially, as well as from your course in 1850— 
and indeed from your whole course from the time you 
entered public life — Ave thought that, when the crisis 
came, if it ever should come, you would certainly go for 
the Union. 

Mr. Stephens. It is quite as surprising to me that any 
such conclusion touching my course, in case Secession 
should be resorted to, should have been drawn from the 
speech you allude to, or from my course in 1850, or from 
any act of my life, as you say my actual course was to 
you when the event occurred. I was indeed thoroughly 
for the Union. This the speech referred to fully attested, 
as well as my whole public course. No words were ever 
uttered with more earnestness or greater sincerity than 
were the words of that speech. No stronger or more 
ardent Union man ever lived than I was. Not a man 
in the Convention which framed the Constitution of the 
United States, which sets forth the terms of '' the Union," 
was or could have been more devoted to it than I was. 
But what Union ? or the Union of what ? Of course, 
the Union of the States under the Constitution. That 
was what I was so ardently devoted to. The Union is 
a phrase often used, I apprehend, without considering 
its correct import or meaning. By many it is used to 
signify the integrity of the country as it is called, or 
the unity of the whole people of the United States, in a 
geographical view, as one Nation. 

Judge Btnum. Certainly ; that is what I mean by it. 

Mr. Stephens. Well, allow me then to say that there 



Coi'I-] UNION SPEECH OF I860. ^c, 

never was in this country any such union as jou speak 
of; there never was any political union between the 
people of the several States of the United States, except 
' such as resulted indirectly from the terms of agreement 
or Compact entered into by separate and distinct°political 
bodies. The first Union so formed, from which the pres- 
•ent Union arose, was that of the Colonies in 1774. They 
were thirteen in number. These were distinct and sepa- 
rate political organizations or bodies. After that the 
Union of States was formed under the Articles of Con- 
federation, in 1777; and then, the modifications of the 
terms of this Union by the new Compact of 1787, known 
as the present Constitution. To this last Union, at first, 
only eleven of the original thirteen States became par- 
ties. Afterwards the other two (North Carolina and 
Rhode Island) also acceded and became members. The 
last of these (Rhode Island) rejoined her former associ- 
ates in 1790. Subsequently, twenty new members were 
admitted into the association, on an equal footino- with 
those first forming it. Whatever intimate relationships, 
therefore, existed between the citizens of the respective 
thirty-three States constituting the Union in 18G0, they 
were created by, or sprung from, the terms of the Com- 
pact of 1787, by which the original States as States 
were united. These terms were properly called the 
Constitution of the United States ; not the Constitution 
of one people as one society or one nation, but the Con- 
stitution of a number of separate and distinct peoples, 
or political bodies, known as States. The absolute Sove- 
reignty of these original States, respectively, was never 
parted with by them in that or any other Compact of 
Union ever entered into by them. This at least was my 
view of 'the subject. Georgia was one of these States. 
My allegiance therefore was, as I considered it, not die 



20 CONSTITUTIONAL VIEW OF THE v\^AE. \You I. 

to the United States, or to the people of the United 
States, but to Georgia in her Sovereign capacity. Georgia 
had never parted with her right to command the ulti- 
mate allegiance of her citizens. In that very speech 
this doctrine, or these principles, were clearly asserted 
and distinctly maintained. However strongly opposed 
I was to the policy of Secession, or Avhatever views I 
gave against it as a policy, or wise measure, yet in that 
very speech, which you considered so strong a Union 
speech, I declared my convictions to he, that if the 
people of Georgia, in their majesty, and in the exercise 
of their resumed full Sovereignty, should, in a regularly- 
constituted Convention called for that purpose, withdraw 
from the Compact of Union, by which she was confede- 
rated, or united, with the other States under the Constitu- 
tion, that it w^ould be my duty to obey her high behest. 
That speech was made mainly, it is true, against the 
policy of Secession for then existing grievances com- 
plained of, but also against the unconstitutionality of 
measures proposed to be passed by the State Legislature, 
with a view of dissolving the Union. The Sovereign 
power of the people of the State, which alone could regu- 
late its relations with the other States, was not vested 
in the Legislature. That resided with the people of the 
State. It had never been delegated either to the State 
authorities, or the authorities created by the Articles of 
Union. It could be exercised only by the people of the 
State in a regularly-constituted Convention, embodying 
the real Sovereignty of the State — -just such Convention 
as had agreed to and adopted the Constitution of the 
United States. It required the same power to unmake 
as it had to make it.'=' Hence, I said — " Let the sove- 

* "Unwrn quoque dissolutur eo modo quo colligatuV^ — " Every thing is 
Jissolved by the same means it is constituted." — JVoJ/'s 3Iaxuns, p. IL' 



Col. I.] UNION SPEECH OF 1860. 2i 

reignty of the people of Georgia be first heard on this 
question of severing the bonds that united them with 
the other States ;" and that, whatever decision the State 
might thus and then make, " my fortunes would be cast 
with hers and her people." 

I indulged a strong hope that when the Sovereignty of 
the people should be so invoked that it would take the 
same view I did of the policy of Secession or Disunion. 
In this hope, however, I was disappointed. The Con- 
vention was called ; it was regularly and legally assem- 
bled ; the Sovereign will of the State, when expressed 
through its properly constituted organ, was for Secession, 
or a withdrawal of the State from the Union. The Con- 
yention passed an Ordinance repealing and rescinding the 
State Ordinance of the second of Januarj^, 1788, by Avhich 
Georgia became one of the United States under the con- 
stitutional Compact of 1787. I was in this Secession Con- 
vention, which assembled on the sixteenth day of January, 
1861. The rescinding Ordinance passed that body on the 
nineteenth day of that month ; I voted against that Ordi- 
nance. It was an Ordinance repealing and rescinding 
the Ordinance of a similar Sovereign Convention of the 
people of the State, passed the second day of January, 
1788, as before stated, and placed Geoi'gia just where she 
was, or would have been, if her Convention in 1788 had 
not passed the Ordinance by which she acceded to the 
Union under the Constitution of 1787. Such were my 
convictions. 

After the passage of this Ordinance by the State Con- 
or, as the Institutes and Broom have it — " JViVriZ tarn conveniens est 
naturali cEquetati quam xinum quoqne dissolvi eo Ugamene quo lufotum 
esi" — "Nothing is so consonant to natural equity as that every contract 
ehould he dissolved by the same means that rendered it binding." — 
BroovVs Legal Maxims., p. 407 ; 2 Inst. 3G0. 



22 CONSTITUTIONAL VIEW OF THE WAR. [Vol. J 

vention on the nineteenth day of January, 1861, with- 
drawing from the Union, I obeyed the high and Sovereign 
behest of my State, as I felt bound in duty and patriot- 
ism to do, and as I had on all occasions declared that 1 
should do. My position, in that Convention and after, 
was the same that it would have been if I had been in 
the State Convention of 1788. Had I been in that Con- 
vention, I should have been warmly in favor of Georgia's 
entering into the Union under the Constitution ; but it 
she had decided otherwise, I should, as a good citizen, 
have felt myself bound to obey her Sovereign will. 

This is a short statement of that matter, and howj^ou, 
or any person who read that speech, could have drawn 
any other inference as to what my course would be, in 
case the people of Georgia, in Sovereign Convention, 
should determine to Secede, I cannot well imagine, but 
upon the supposition that I did not mean what I said. 

Moreover, however general the surprise and disappoint- 
ment you speak of, may have been at the North, as to my 
course, yet it certainly was not universal ; for Mr. Gree- 
ley, in his American Conflict, very clearly shows that he 
was not either surprised or disappointed at my course 
from any thing expressed in that speech. After quoting 
with commendation several extracts from it, he says : 
" This was frank and noble, yet there was a ' dead fly 
in the ointment' which sadly marred its perfume. That 
was a distinct avowal of the right of the State to over- 
rule his own personal convictions and to plunge him into 
treason to the Nation."* 

However Mr. Greeley and I may differ as to what con- 
stitutes treason, and as to what he is pleased to call " the 
Nation," this shows conclusively that he at least wa? 

* A7nerican Conflict, vol. i, page 343. 



Col. I.J OTHER SPEECHES, NOT GENUINE. 2h 

clearly and fully apprized of my position in case tli(3 State 
of Georgia should Secede, even against my earnest en- 
treaty and utmost exertions in opposition to the measure. 

Judge Bynum. That part of the speech, I must con- 
fess, escaped me ; at least it was lost in the deep impres- 
sion which the fervid appeals for the Union in other parts 
made upon my mind. 

Major Heister. I recollect that part of the speech 
well, but I could not well reconcile it with your speech 
in the Secession Convention of Georgia, in January, 1861, 
in which you characterized Secession as the " height of 
madness, folly and wickedness, that could never get either 
your vote or sanction." 

Mr. Stephens. I am not surprised at your difficulty in 
this respect. The ready solution to it, however, is this : 
no such speech as that you quote from was ever made by 
me. I did regard Secession as an unwise measure, but 
never questioned its Rightfulness. I thought the Staie 
had ample cause to justify her in Seceding, but I thought 
that a redress of her wrongs might be better secured by 
another line of policy. 

Major Heister. Why, the speech is in Lossing's His- 
tory* of the War, and in the Eebellion, by Botts.f 

Mr. Stephens. I know that. I have read it in both ; it 
may be in many other similar works, but it is an entire 
fabrication from beginning to end. No such speech was 
ever made by me in that Convention or anywhere else ; 
I made but one speech on the subject in that Convention, 
which was extensively published in the newspajDcrs of the 
day, and can be seen in the volume of my speeches which 
has been recently published. This speech was against the 



* T7ie Civil War in America, by Lossing, vol. i, page 57. 
t The Great liebelUon, by Johu M. Bults, page 32(5. 



24 CONSTITUTIONAL VIEW OF THE WAE. [Vol. I. 

policy of Secession, as the one before the Legislature in 
November was ; but it expressed the same sentiments as 
the other, touching my course in case the State should go 
against my judgment. It had the same '' dead fly in the 
ointment," as Mr. Greeley would express it. Other 
^oeeches I see attributed to me in Mr. Lossinof's, as well 
as in several other Histories of the War, which are as 
groundless as this. Of this class are those quoted from 
by Mr. Lossing, representing me as raising the cry of " on 
to Washington,"* in April, 1861. No such sentiments 
were ever uttered by me as are given in these reported 
speeches. This shows what kind of materials histories 
are sometimes made of. 

Judge Bynum. But, Mr. Stephens, allow me to ask 
you, how you could reconcile it wath your sense of duty, 
to go with your State against the Union, or against the 
Constitution, which you admit was the foundation of the 
union of the States, and which, on its face, is declared to 
be the supreme law of the land ? How could you con- 
sider what you style your ultimate allegiance as due to 
your State and not to the United States? You were a 
citizen of the United States; allegiance and citizenship 
go together ; they cannot be separated. Allegiance and 
Paramount authority, it seems to me, necessarily go to- 
gether under our institutions. The first follows the lat- 
ter, as a matter of course. Pardon me, therefore, for 
asking you, if you will not consider it obtrusive or imper- 
tinent, how you could possibly do otherwise than con- 
sider, not only your ultimate, but present and ever abso- 
lute allegiance due to the General Government, when 
there was a combination to overthrow it, and which you 
declared, in your speech of November 14th, 1860, to be, 

* The Civil War in America, by Lossing, voL i, pages 379, 382. 



Col. l.J QUESTION PROPOUNDED. 25 

in your opinion, the best Government in the wrrld ? Was 
not your allegiance due to that Government ? 

Mr. Stephens. By no means. Allegiance, as we under- 
stand that term, is due to no Government. It is due the 
power that can rightfully make or change Governments 
This is what is meant by the Paramount authority, o. 
Sovereignty. Allegiance and Paramount authority do go 
together; w^e agree in that. But there is a great differ- 
ence between the supreme law of the land and the Para- 
mount authority, in our system of government, as well 
as in all others. Obedience is due to the one, while alle- 
giance is due to the other. Obedience to law, while it is 
law, or the Constitution, which is an organic law for the 
time being, and allegiance to the Paramount authority, 
which can set aside all existing laws, fundamental laws 
Constitutions, as w^ell as any others, are very different 
things. 

Your question, hoAvever, my dear sir, opens up the 
whole subject of the late war, its causes, nature, and 
character. It involves all the questions of right and 
wrong, in its beginning, conduct, and conclusion. This, 
too, necessarily involves an inquiry into and a cor- 
rect understanding- of the nature of the Government of 
the United States ; the relations of the States to it ; and 
the nature and character of that Union of which we have 
spoken, and about which we often hear so much. In a 
Avord, it involves a solution of the great question, where 
the Paramount authority or ultimate Sovereignty, under 
our system of Government, resides. If these matters 
had been properly discussed, and properly understood, 
and settled by reason, in accordance with truth and jus- 
tice, before a resort to arms was had, our once happy and 
prosperous countr}^ would have been saved the wide- 
spread desolation that now broods over so large a section 



26 CONSTITUTIONAL VIEW OF THE WAR [Vol. 1 

of it, and the far greater evils which I seriously appre- 
hend still threaten the whole of it. The million of lives 
that were sacrificed in this fratricidal strife, and the billions 
of treasure that were expended in it, as well as the untold 
suffering which attended it, would have been saved. 

We have many Histories of this war, which, from the 
bench of the Supreme Court of the United States, has 
been pronounced to be ''the greatest civil war known in 
the history of the human race,"* and " the din of con- 
flict" in which, says Mr. Lossing, the author of one of 
these Histories, "was heard all over the world; and 
people of all nations were spectators of the scene !"-j- 

Most of these Histories, that I have read, treat mainly 
of the current, or passing events, preceding and during 
its continuance. They are but the records and chronicles, 
and imperfect ones too, of the excited passions, imbittered 
prejudices, and extravagant utterances, of the public 
men, as well as of the masses of the people on both sides. 
Their most entertaining parts are chiefly devoted to a 
portrayal of the terrible conflict of arms, scenes of battle- 
fields, the marshalling of hosts in hostile array, the skill 
of Generals, and deeds of valor and prowess on one or the 
other, or both sides, which excite the highest admiration 
with those who take pleasure in such descriptions ; but 
none of them have taken any thing like an unimpassioned 
and Philosophical view of the real causes of this great 
scourge ; or how it might have been and ought to have 
been prevented, or how like results and calamities, under 
like circumstances, may hereafter be avoided. 

The only exceptions to this remark of all the works 
of the kind, that I have seen, are, " A Youth's History 
of the Great Civil War," published by Van Evrie, Hor- 

* 2d Black''s Eejjorts, 0G9. t Loaainy, vol. i, p. 3. 



Col. ] HISTORIES OF THE WAR. 27 

tou & Co., New York, and a work entitled, ^^ The Origin 
of the hite War," by Mr. George Lunt, of Boston.* Mr. 
Lunt has treated his subject with great truthfuhiess and 
rare ability ; but still he does not go quite to the bottom 
of the subject. He does not go into an inquiry into tlie 
nature of the Government of the United States, and the 
character of the Union, by which the States were united. 
Herein alone can be discovered the remote, but real 
causes of the war. Such an inquiry did not lie, it seems, 
within the scope of his object. The Youth's History 
barely glances at what I allude to. There has been as 
yet, as far as I have seen, no history entering into an 
exposition of those great fundamental laws, governing 
our complicated system of political organization, from a 
violation of which, all these troubles resulted. Resulted 
as inevitable consequences: just as the most malignant 



* Since the preparation of these sheets for the press, the writer has 
seen, for the first time, a copy of the first volume of " The Civil War in 
America, by John W. Draper, M. D., LL. D., of the University of Xew 
York." This, perhaps, should be also excepted from the remarks of the 
text. There is a very profound philosophy running through this book, 
somewhat of the Buckle School ; but its philosophy, as to the causes of 
the war, is very well condensed, by the author himself, in one sentence, 
on page 25. That sentence is in these words : " There is a political 
force in ideas which silently renders protestations, promises, and guaran- 
tees, no matter in what good faith they may have been given, of no 
avail, and which makes Constitutions obsolete. Against the uucon- 
trollable growth of the anti-slavery idea the South was forced to 
contend." 

This kind of Philosophy accounts for the war, as it might very readily 
account for most of the evils which afflict mankind, by simply assigning 
it and them to the general depravity of human nature. 

This is the Philosophy of Fatalism — which assigns consequences to 
antecedents, over neither of which human will has any control ; and 
for either of which it would be diflicult to assign any just responsibility 
or accountability. A better and sounder philosophy is that which 
teaches men their errors, and which, by inculcating sound and correct 
principles, enables those who study it, in the exercise of virtue, to 
become wiser, truer, and better, politically as well as morally. 



28 CONSTITUTIONAL VIEW OF THE WAE. [Yol. I. 

diseases often do, from a neglect or violation of the vital 
laws of physical organism. From such an investigation 
and exposition alone, can he known the nature and cha- 
racter of the war itself, and on which side the right or 
wrong attending it, or the right or wrong of the conduct 
of any of the actors in it, is to be placed for the enlight- 
enment of mankind, and the benefit of posterity. We 
have books upon books about '* Negro Slavery," " The 
Slave Power," ''Slave Drivers," and about "An Oligar- 
chy of Slave Holders," etc., but none of them attempt to 
show that these subjects, even according to their fancies, 
came within the purview of the powers of the General 
Government. 

Mr. Greeley, one of the ablest and fairest writers of the 
class I have alluded to, in his " American Conflict," 
treats the whole war as the culmination of a strife, for 
more than half a century, about " Negro Slavery," with- 
out scarcely giving a passing word upon the subject of 
the nature of the Government of the United States, or 
attempting to show that it had any rightful authority 
whatever over the subject matter of this strife. He 
writes as if it were conceded that the United States is 
one great Nation, one people, divided in sentiment upon 
the subject of African Slavery, or the legal status of the 
African race in some of the States. He traces and treats 
the discussion of this question just as a British historian 
might treat the discussions on the Corn Laws, or the 
extension of the franchise in his country. All this man- 
ner of treatment of the sut ject is radically defective. It 
utterly ignores the true causes of the war, on which 
alone its Rightfulness depends. Slavery, so called, or 
that legal subordination of the black race to the white, 
which existed in all but one of the States, when the 
Union was formed, and in fifteen of them when the war 



C^u l."| THE ISSUE PRESENTED. 2^ 

began, was unquestionably the occasion of tbe war, the 
main exciting proximate cause on both sides, on the one 
as well as tlie other, but it was not the real cause, the 
^' Causa causans" of it. That was the assumption on the 
part of the Federal authorities, that the people of the 
several States were, as you say, citizens of the United 
States, and owed allegiance to the Federal Government, 
as the absolute Sovereign power over the whole country, 
consolidated into one Nation. The war sprang from the 
very idea you have expressed, and from the doctrine 
embraced in the question propounded to me. It grew 
out of different and directly opposite views as to the 
nature of the Government of the United States, and 
where, under our system, ultimate Sovereign power or 
Paramount authority properly resides. 

Considerations connected with the Ugal status of the 
Black race in the Southern States, and the position of 
several of the Northern States toward it, together with 
the known sentiments and principles of those just elected 
to the two highest offices of the Federal Government 
(Messrs. Lincoln and Hamlin), as to the powers of that 
Government over this subject, and others which threat- 
ened, as was supposed, all their vital interests, prompted 
the Southern States to withdraw from the Union, for the 
very reason that had induced them at first to enter 
into it : that is, for their own better protection and 
security. Those who had the control of the Administra- 
tion of the Federal Government, denied this right to 
withdraw or secede. The war was inaugurated and 
waged by those at the head of the Federal Government, 
against these States, or the people of these States, to 
prevent their withdrawal from the Union. On the part 
of these States, which had allied themselves in a common 
cause, it was maintained and carried on purely in defence 



80 CONSTITUTIONAL VIEW OF THE WAR. [Yol. .. 

of tins great Kiglit, claimed by them, of State Sove- 
reignty and Self-government, which they with their 
associates had achieved in their common struggle with 
Great Britain, under the Declaration of 1776, and 
which, in their judgment, lay at the foundation of the 
whole structure of American free Institutions. 

This is a succinct statement of the issue, and when 
the calm and enlightened judgment of mankind, after 
the passions of the day shall have passed off, and shall 
be buried with the many gallant and noble-spirited men, 
who fell on both sides in the gigantic struggle which 
ensued, shall be pronounced, as it will be, upon the 
right or wrong of the mighty contest, it must be ren- 
dered in favor of the one side or the other, not according 
to results, but according to the right in the issue thus 
presented. 

I should take pleasure, though a melancholy pleasure 
it would be, in giving you my views in full on this sub- 
ject, if it would be agreeable to you and the other gen- 
tlemen present. Not so much, however, with a view to a 
personal vindication, as with a view to the vindication of 
the truth of History. But, in doing so, I think I should 
be able to make it appear very clearly to you why I acted 
as I did in going with my State, as I did. At least I am not 
at all averse to giving " the reason of the faith that is in" 
me, which thoroughly impresses me with the conviction 
not only of the correctness of my own course, but, also, 
of the Rightfulness in itself, or Justifiableness on the 
part of the State in the adoption of a policy that I did 
not approve ; and that if the History of this most lament- 
able and disastrous conflict, disastrous I fear to all the 
great principles of Self-government, established or 
attempted to be secured by the Constitution of the 
United States, shall ever be written, the Right and 



Col. I.] THE ISSUE PRESENTED. 31 

Justice of the cause will be found to be on the side of 
those with whom my fortunes were cast, and with 
whom, in all their heroic struggles and unparalleled 
sacrifices, my feelings and sympathies were ever 
thoroughly enlisted, and my utmost exertions put forth 
for their success. Whatever errors in policy they may 
have committed, either in the inception of the difficul- 
ties or in their subsequent management, the real object 
of those who resorted to Secession, as well as those who 
sustained it, was not to overthrow the Government of 
the United States; but to perpetuate the principles 
upon which it was founded. The object in quitting the 
Union was not to destroy, but to save the principles of 
the Constitution. The form of Government therein 
embodied, I did think, and do still think, the best the 
world ever saw, and I fear the world will never see its 
like again. 

Judge Bynuji. Be assured I should like very much 
to hear you, otherwise I should not have introduced 
the subject as I have. The same I feel warranted 
in saying for my friends. We came to spend a few 
days with you, not only to see you, and to revive the 
friendship of former years, but to talk with you, and to 
hear your views generally upon the present state of 
public affairs. We know your opinions on some matters 
differ widely from ours. But we cheerfully accord to 
you perfect sincerity in your convictions. You must 
not, though, indulge the hope or expectation of producing 
such a change in ours as you seem to think you can. 
That, indeed, would be a Herculean undertaking. 

Mr. Stephens. You mean sim^^ly to verify what is said 
in the old quaint lines : 

" Convince a man against his will, 
He's of the same opinion still." 



32 CONSTITUTIONAL VIEW OF THE WAE. [Vol. 1 

Or, as Butler, in Hudibras, has it : 

" He that complies against his will, 
Is of his own opinion still." 

Prof. Norton. He rather intimates, one might infer, 
that the roots of his Radicalism wonld be more difficult to 
exterminate than were the roots of the hundred heads of 
the Lerncean Hydra, which even Hercules was unable to 
destroy without the assistance of Tolas. Is that your 
idea, Judge ? 

Judge Btnum. No. I was not thinking of the Hydra, 
its heads or their roots. I was only giving utterance to 
the consciousness I feel of the impregnable position of 
Truth, Justice and Right, upon which my principles are 
founded ; and. these being so founded, I meant only to 
say that I did not think that either they or my opinions 
in regard to them can possibly be changed. 

Mr. Stephens. Well, be that as it may. I did not 
mean to say that I thought that T could change your 
opinions on these subjects, but only that I could make it 
appear clearly to j^ou, why I, with my convictions, acted 
as I did, under the circumstances. Our ideas of Truth, 
Justice and Right, in political as well as social matters, 
and all the relations of life, depend very much upon cir- 
cumstances. This seems to be owing partly to the in- 
firmities of human nature. There ought, however, to be 
no difference between intelligent minds as to Truth, which 
rests simply and entirely upon matters of fact ; but, in 
practical life, there are great and wide differences, even 
on this, owing to a disagreement or a different under- 
standing as to the facts merely. Justice and Right 
depending on the Truth of the facts, must, of course, be 
the subjects of much wider differences in all cases where 
the facts are not first settled, or where the Truth is not 
admitted by both sides. Men's convictions as to Truth, 



Col. I.] CONVICTIONS ALWAYS SINCERE. 33 

or what they receive as the Truth, depend entirely upon 
their understanding of facts. Convictions are always 
sincere. There may be insincere professions of opinions, 
but there can be no insincere convictions, as to Truth, 
Justice, or Right, in any matter relating to human con- 
duct. These depend upon laws of mind, over which voli 
tion has no control. There is as much sound, genuine Phi- 
losophy, as wit, in the couplets quoted. There is no 
such thing as convincing a man against his will. Galileo 
complied with the exactions of torture, by renouncing 
his belief in the rotatory motion of the earth ; but his 
convictions of tliis great truth remained as firm as ever, 
notwithstanding. Belief and conviction are results with 
which the will has nothing to do, except in collecting and 
ascertaining the facts upon which depend the truth, or 
what is considered the truth, to which alone the mind 
yields its assent. Hence, the necessitj^ of a very liberal 
charity in all discussions of this nature. 

The question you submit relates to Government— one 
of the most intricate, as well as interesting, subjects that 
can engage the attention of reflecting minds. Cicero 
maintains, that nothing connected with human affairs can 
more properly or profitably occupy lue attention of think- 
ing men, in their moments of leisure, or periods of holi- 
day, than matters concerning the good of the Common- 
wealth. Your question opens a wide field for inter- 
change of views upon topics of this kind, and it will be 
quite as agreeable to me, with the qualifiGation before 
stated, as it can be to you, to have a full, free and social 
talk on these and kindred matters, whether for bare 
entertainment only, and nothing else, or whether with a 
view to the chances of mutual profit, each agreeing to 
disagree throughout, where our convictions difler, or 
where, to state it differently, our understanding of the 
3 



34 CONSTITUTIONAL VIEW OP THE WAR [Vol.1, 

facts differ. Is it agreeable all round, that we should have 
such a talk, upon these terms and conditions? 

Judge Bynum. Perfectly so, to me ; and I will under- 
take to vouch for the others. You see the Proftssor and 
the Major both nod their assent. 

Mr. Stephens. Well, then, before undertaking to answer 
your question, Judge, '•'• how I could reconcile it with my 
sense of duty, to go with my State against the Union," 
which opens such a field of inquiry, allow me to premise, 
by making an observation or two on your remark about 
my being a citizen of the United States, and, as such, 
being bound by allegiance, as a loyal citizen (to use a 
popular phrase, so current just now), to obey the acts of 
that Government, as the supreme law of the land. 

I agree with you in this, that allegiance and Paramount 
authority go together ; that the first follows the latter. 
We shall have much to say on that, hereafter. 

But, first, as to citizenship. Is there any such thing 
as citizenship of the United States, apart from citizenship 
of a particular State or Territory of the United States ? 
To me it seems most clearly that there is not. We are 
all citizens of particular States, Territories, or Districts 
of the United States, and thereby only, citizens of the 
United States. I was a citizen of Georgia ; being a citi- 
zen of Georgia, I became, thereby, a citizen of the United 
States, only because Georgia v/as one of the United States 
under the Constitution, which was the bond, or compact, 
of the Union between the States thus united. Had 
Georgia never united with the other States, her people 
would never have been, in any sense of the word, citizens 
of the United States. 

Judge Bynum. You do not mean to say that there is 
no such thing as being a citizen of the United States, 
except as a citizen of r^ome 'one of the Statxis or Terri- 
tories ? 



C«i. I.J CITIZENSHIP 35 

Mr. Stephens. Yes; that is exactly what I mean 
to say. 

Judge Bynum. That is, certainly, a strange idea. 
What do you do with naturalized foreigners, who are. by 
the laws, made citizens of the United Stp^es? 

^Ir. Stephens. They are, as you and I are, citizens of 
the United States, because of their being, under the law!>', 
admitted to citizenship of some one of the States or 
Territories of the United States. The only power Con- 
gress has, under the Constitution, on this subject, is to 
make uniform rules of naturalization. That is, to pre- 
scribe uniform rules, which are to be tlie same in all of 
the States, by which foreigners may be permitted to 
become citizens of the several States or Territories, 
Before this power was delegated to Congress, each State, 
as all other Sovereign, independent nations, had the 
uncontrolled right to admit foreigners to citizenship, 
upon such terms as each, for itself, saw fit. In order 
that the -same terms or conditions might exist in all the 
States, each State, in the Constitution, agreed to delegate 
the power to Congress, to make the rules on the subject 
of naturalization uniform in all of the States. This is 
the view of all writers upon the subject. 

Mr. Rawle, in his admirable treatise on the Constitu- 
tion of the United States, has well said, on the subject 
of citizenship, generally :* " It cannot escape notice 
that no definition of the nature and rights of citizen> 
appears in the Constitution." And then, on the subject 
of naturalization, and the reason of giving power to 
Congress over the subject, he says :f '' In the second 
section of the fourth article, it is provided that the citi- 
zens of each State shall be entitled to all the privileges 



Bawle on the Coi^stitution, p. 85. t Id., p. 84. 



36 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1 

and immunities of citizens in the several States; rnd the 
same rule had been ambiguously laid down in the Artides 
of Confederation. If this clause is retained, and its 
utility and propriety cannot be questioned, the conse- 
quence would be that, if each State retained the power 
of naturalization, it might impose on all other States 
such citizens as it might think proper. In one State, 
residence for a short time, with a slight declaration of 
allegiance, as was the case under the former Constitution 
of Pennsylvania, might confer the rights of citizen ship ; 
in another, qualifications of greater importance might be 
required : an aliei"i, desirous of eluding the latter, might, 
by complying with the requisites of the former, become 
a citizen of a State in opposition to its own regulati ms ; 
and thus, in fact, the Laws of one State become para- 
mount to that of another. The evil could not be better 
remedied than by vesting the exclusive power in Con- 
gress." That is, of making the rule for admission to 
citizenship in each State uniform in all the States. The 
same view is clearly and strongly expressed by Judge 
Curtis, of the Supreme Court of the United States, in a 
very able and elaborate opinion upon questions of as 
much importance as were ever decided hy that Court. I 
refer to the Dred Scott case, 19 Boivard's Reports, 393. 
Here is what he says : — 

" It appears, then, that the only power Congress has 
concerning citizenship is confined to the removal of dis- 
abilities of foreign birth." 

Judge Curtis, in support of his position, cites numerous 
authorities— TAe Federalist, No. 42; 12th Wheatori, 259, 
269; 3d Washington, 313, 322; 12th Wheaton, 277; 
M Stonj on Constitution, 1-3 ; Ilaicle on the Comtitution, 
S4-8S ; 1st Tiichers Blackstone, App., 255, 259. 

When a foreigner, therefore, wishes to become a citizen 



Col L] citizenship. 3.7 

of any one of the States or Territories, he has to file hi? 
petition to this effect, according to the uniform rules 
established by Congress ; and the Courts, in the State or 
Territory, whether Federal or State, have to conform to 
these rules, in admitting to citizenship, where the applica- 
tion is made. He then becomes possessed of all the 
rights, privileges and immunities pertaining to citizen- 
ship which are possessed by native-born citizens in that 
State or Territory, and no more. He then and thereby 
only becomes a citizen of the United States as native- 
born citizens so become, and no more. He cannot enter 
suit, in any of the United States Courts, for a redress 
of any wrong within their jurisdiction, any more than a 
native-born citizen, without stating distinctly that he is a 
citizen of some one of the States, and of which one. He 
is, in every respect, after being naturalized in conformity 
to the uniform rules, as stated, on the same footing with 
native-born citizens. Of this class, Judge Curtis, further 
on in the same opinion, says : " The necessary conclusion 
is, that those persons, born within the several States, 
who, by force of their respective constitutions and laws, 
are citizens of the State, are thereby citizens of the 
United States." This covers the whole question. There 
is no such thing as general citizenship of the United 
States under the Constitution. 

Judge Bynum. That is not the general understanding 
upon this subject. 

Mr. Stephens. That may be, but it is certainly the un- 
derstanding of the Supreme Court of the United States in 
repeated decisions, as well as the understanding of the 
ablest writers upon the subject ; and it is very clear to 
my mind that it is the only true constitutional under- 
standing of the subject. So much then for citizenship 



38 CONSTITUTIONAL VIEW OF THE WAR [Vol. I. 

aiul its necessary legitimate consequences, byway of pre- 
mise, barely at this time/^ 

Secondly. Another observation now in the same way 
upon wh:it }ou call the supreme law of the land. The 
Constitution does declare that " this Constitution and the 
laws of the United States made in pursuance thereof, and 
all treaties made or which shall be made under the au- 
thority of the United States, shall be the supreme law of 



* Mr. Calhouix, in the United States Senate, expressed liimself upon 
the subject, as follows : — 

"The Senator from Delaware (Mr. Clayton), as well as others, had 
relied with great emphasis on the fact, that we are citizens of the United 
States. I, said JSIr. C, do not object to the expression, nor shall I de- 
tract from the proud and elevated feelings with which it is associated ; 
but he trusted that he might be permitted to raise the inquiry, in what 
manner we are citizens of the United States, without weakening the 
patriotic feeling with which he trusted it would ever be uttered. If by 
citizen of the United States he meant a citizen at large, one whose citi- 
zenship extended to the entire geographical limits of the country with- 
out having a local citizenship in some State or Territory, a sort of citi- 
zen of the world, all he had to say was, that such a citizen would be a 
perfect nondescript ; that not a single individual of this description could 
be found in the entire mass of our populntion. Xotwithstanding all the 
pomp and display of eloquence on the occasion, every citizen is a citizen 
of some State or Territory, and, as such, under an express provision of 
Ihe Constitution, is entitled to all privileges and immunities of citizens 
in the several States ; and it is in this, and in no other sense, that we 
are citizens of the United States. The Senator from Pennsylvania (Mr. 
Dallas), indeed, relies upon that provision in the Constitution which givey 
Congress the power to establish a uniform rule of naturalization ; and 
the operation of the rule actually established under this authority, to 
prove that naturalized citizens are citizens at large, without being citi- 
zens of any of the States. He did not deem it necessary to examine the 
law of Congress upon this subject, or to reply to the argument of the 
Senator, though he could not doubt that he (:Mr. D.) had taken an en- 
tirely erroneous view of the subject. It was sullicient that the power of 
Congress extended simply to the establishment of an uniform rule by 
which fore-gners might be naturalized in the several States or Territo- 
ries, without infringing, in any other respect, in reference to naturaliza- 
tion, the rights of the States as they existed before the adoption of the 
Constitution." JVi7c«'s Ficghtcr, vol. xliii, Supplement 1G6. 



Col. I.] CO^s'^TITUTION SUPREME LAW. 39 

tlie land, and tlie Judges in every State shall be bound 
thereby, any thing in the Constitution or laws of any 
State to the contrary notwithstanding." 

Judge Bynum. Exactly so; and, this being so, is not 
everybody in the States — judges, legislators and people, 
whether citizens of the United States, in the usual accep- 
tation of that term or not — bound to obey them ? 

Mr. Stephens. Most certainly; so long as the Para- 
mount authority over them shall so ordain and order, but 
no longer : so long as it is law, and no longer. There is 
a wide difierence, as I stated at first, between the supreme 
law of the land and the Paramount authority. Obedience 
is due to the one as long as it is the law^, and allegiance 
is due to the other wdien it declares, as it can, that the 
hnv no longer exists. In our Government, as in all Gov- 
ernments, there must be a supreme law-making power on 
the subjects within its jurisdiction; that is, the supreme 
power of making laws to be obeyed on these subjects must 
be lodged somewhere. It is not an absolute power in any 
Government founded upon the principles of ours. It is 
a powder exercised in trust only. This supreme power, 
moreover, or the delegation of its exercise, emanates from 
Sovereignty or the Paramount authority, but it is not 
Sovereignty itself. Ail laws therefore passed in pursuance 
of the rules prescribed by the Sovereign or Paramount 
authority, are supreme, and to be obeyed so long as they 
remain of force by the continued authorit}- of the Sover- 
eign power. This is universally admitted; no one dis- 
[)utes it. In this country it is equally admitted on all 
hands that Sovereignty, which is the Paramount authority, 
resides with the People. All government, according to 
OLU axioms and maxims, is but the exercise in trust of 
delegated powers. The exercise of supreme or Sover- 
eign powders may be by delegation. In this ctmntry 



40 CONSTITUTIONAL ^lEW OF THE WAR. [Vol. I. 

it is entirely by delegation ; but whatever is delegated 
may be resumed by the authority delegating. No pos- 
tulate in mathematics can be assumed less subject to 
question than this. The exercise of supreme law-making 
power, even over the authority delegating it, may be 
legitimate so long as the delegated power is unresumed. 
Obedience to laws passed under such delegation of power, 
is, as I have said, a very different thing from allegiance 
which is due to the authority delegating the exercise of 
the supreme law-making power. Whenever the delegated 
powers are resumed, allegiance must be due to the re- 
suming Sovereign power; to that which can rightfully 
make and unmake Constitutions. 

The Government of the United States was created by 
the States. All its powers are held in trust by delega- 
tion from the States. These powers are specific and 
limited. They are supreme within the sphere of their 
limitations — supreme so long as the authorities delegating 
them continue the trust even over the authorities dele- 
gating them ; but being held entirely by delegation, 
they exist no longer than the party or parties delegating 
see fit to continue the trust. In this sense alone is the 
authority of the General Government supreme, even over 
the subjects which lie within the sphere of the powers 
with which it was intrusted by delegation. The Para- 
mount authority in this country, Sovereignty, that to 
which allegiance is due, is with the People somewhere. 
There is no Sovereignty either in the General Govern- 
ment or the State Governments. These are permitted to 
exercise certain Sovereign powers so long only as it shall 
suit the Sovereign will that they shall so do, and no 
longer. Sovereignty itself, from which emanates all po- 
litical power, I repeat, remains and ever resides with the 
People somewhere. And with what People ? Why, of 



Col. I.] HAMILTON ON TliE SUPREME LAW. 41 

necessity, it appears to me, with the same People who 
delegated whatever powers the General Government has 
ever been intrusted with ; that is, the People of the 
several States ; not the whole People of the United States 
as one mass, as can be most conclusivelj^ demonstrated. 

In addition to this, I remark that this clause of tli 
Constitution contains no grant or delegation of power 
in itself. It only declares what would have been the 
effect of the previously delegated powers without it. All 
Treaties or Covenants between Sovereigns are the supreme 
law over their subjects, or citizens, so long as they last. 
Indeed, so far from containing any new or substantive 
power, upon its very face this clause shows that it was 
intended as a limitation of powers. So far from showing 
that absolute Sovereignty was thereby vested in the Gen- 
eral Government, such Sovereignty as is entitled to the 
allegiance of anybody, it shows conclusively that even 
obedience is due to such laws, treaties, etc., only, as may 
be made in pursuance of the Constitution. This, by 
itself, shows the Government to be one of limited powers 
— and so far from allegiance being due to it in any sense, 
that even obedience is due only to a limited extent. 

This was the opinion of Alexander Hamilton, who 
was one of the extremest of the Nationals of his day, 
and who never failed to claim all acknowledged, as well 
as some doubtful, or questionable powers, which tended 
to strengthen the Federal Government. While the Con- 
stitution was before the several States, for their considera- 
tion before its adoption, he unequivocally declared, on 
several occasions, that this clause conveyed no grant of 
power, and was entitled to no such construction as that 
which would claim under it the allegiance of the citizens 
of the several States. Let us see what he wrote on the 
subject at that time. In a note to the 27th number of 



4:2 CONSTITUTIONAL VIEW OF THE WAR. ['Vol. I. 

the Federalist, wherein he had alluded to this clause, he 
saj^s ''the sophistn/,'' us he called it, which had been 
employed to give it the construction you would put upon 
it, would. " in its proper phice, be fully detected." And 
then, in the 31st number of the Federalist (Dawson s 
Edition), page 206, he thus detects and exposes this 
sophistiy : " But," says he, " it is said that the laws of 
the Union are to be the supreme law of the land. But 
what inference is to be drawn from this, or what would 
they amount to, if they were not supreme ? It is evident 
that they would amount to nothing. A law, by the very 
meaning of the term, includes supremacy. It is a rule 
wliicli those, to whom it is prescribed, are bound to 
observe. If individuals enter a state of society, the laws 
of that society must be the supreme regulator of their 
conduct. If a number of political societies enter into a 
larger political societj^, the laws which the latter may 
enact, pursuant to the powers intrusted to it by its Con- 
stitution, must necessarily be supreme over those socie- 
ties, and the individuals of whom they are composed." 

And further in the same paper — " But it will not fol- 
low from this doctrine that acts of the larger societies, 
which are not pursuant to its constitutional powers, but 
which are invasions of the residuary authorities of the 
smaller societies, will become the supreme law of the 
land. These will be merely acts of usurpation, and will 
deserve to be treated as such. Hence we perceive that 
the clause which declares the supremacy of the laws of 
the Union, like the one we have just before considered. 
only declares a truth which flows immediately and neces- 
sarily from the institution of a Federal government. It 
will ixot, I presume, have escaped observation, that it ex- 
pressly confines this supremacy to the laws made pursu- 
ant to the Constitution, which I mentioned merely as an 



Col. I.l HAMILTON ON THE SUPREME LAW. 43 

instance of caution in the Convention, since that Innita- 
tion would have been to be understood, though it had 
not been expressed." 

This shows conclusively that Mr. Hamilton, one of 
the extremest of the Nationals in his day — he who did 
wisii a National government instituted instead of a 
Federal one, bat who gave a cordial support to the Fed- 
eral plan when the National one was abandoned, as we 
shall hereafter see — did not claim any delegation or 
grant of power from this clause of the Constitution, but 
expressly states that it was intended as a limitation, as 
its words fairly import, of other powers which had been 
delegated, and that this limitation had been inserted out 
of abundant caution on the part of the Convention. He 
maintained the same position in the State Convention 
of New York. This is quite enough I think to show in 
this place, by way of premise, that the allegiance of the 
citizens of the several States was never intended to be 
transferred to the United States, or to the Government 
of the United States, by this clause of the Constitution. 
And fron^ what has been said, without going into a his- 
tory of this clause, or explaining how it came to be 
introduced, which would strengthen the views given, it 
very clearly appears, as well as from the language of 
the clause itself, that the Government of the United 
States is not, by virtue of it, supreme or Sovereign in 
the sense in which you use that term ; and so far from 
being entitled thereby to claim the ultimate or any sort 
of allegiance of the citizens of the several States, it is 
pot entitled even to claim their obedience to its laws 
except within the strict limit of its specifically-delegated 
powers. Thus far, it appears clearly, that a thorough 
inquiry into and a full investigation of the nature of tiie 
Government of the United States, as well as the chanuj- 



4:4 CONSTITUTIONAL VIEW OP THE WAR. [Vol. I 

ter and extent of its delegated powers, are essential to a 
correct understanding of the .subject presented in the 
question propounded. Without this, there can be no cor- 
lect knowledge or sound judgment as to the nature and 
character of the war, whether an Insurrection, a Rebellion, 
a Civil war, or a war of Aggression for unjust power and 
Dominion on one side — while one purely in defence of 
ancient and well-established Sovereign Rights on the 
other. Without this there can be no correct judgment 
as to whether I acted properly or improperly in the 
course I took, or as to the conduct or rectitude of any 
of the various actors therein, on one side or the other. 
To this inquiry we will therefore now proceed. 

Professor Norton. Without wishing to interrupt you, 
allow me a word at this point. What you have read 
from Mr. Hamilton's article in the Federalist waa 
new to me. I Avas not aware that he took any such 
view of that subject. I was always of opinion that 
Mr. Hamilton claimed absolute Sovereignty for the 
United States, and I supposed it was with him, as with 
most others who do, mainly under this clause of the 
Constitution. In this it seems that I was wrong. You 
stated that the history of this clause of the Constitution, 
or the facts connected with its introduction, ^vould 
stroigthen the view you take of it, and in which it 
appears you are sustained by Mr. Hamilton. I should 
like, before you proceed further, to know the f\icts and 
circumstances attending its introduction, to which you 
refer, if it will not too much interfere with the line of 
your remarks. 

Mr. Stephens. Not at all. But allow me first to set 
you right w^ith regard to Mr. Hamilton's position as to 
the absolute Sovereignty of the United States over the 
several States. You are quite mistaken in supposing 



Col. I.] HISTORY OF THE SUPREME LAW CLAUSE. 45 

tliat he ever held that doctrine. He advocated the 
Constitution as Federal in its character, as we shall see. 
In this 27tli number of the Federalist he speaks of 
"the laws of tlie Confederacy." He styles the Govern- 
ment a " Confederacy." 

But, without digressing further on that point now, I. 
will proceed to reply to your question. The history of this 
clause of the Constitution is this. It is well known, or, 
at least, it may be here stated, as it will be established 
svithout question, that, in the Convention that formed 
the Constitution, there was a party who were strongly in 
favor of doing away with the Federal system that ex- 
isted before that time, and substituting, in its stead, a Gen- 
eral National Government over the whole people of all 
the States, as one body politic. This party wished to do 
away entirely with the Sovereignty of the several States. 
Their object was to give the Central National Government 
Paramount authority over the Sovereignty of the States. 
With this view, a proposition was brought forward, to 
give the National Government power "to negative ail 
laws, passed by the several States, contravening, in the 
opinion of the National Legislature, the articles of Union, 
or any treaties subsisting under the authority of the 
Union." This proposition, if it had been adopted, would 
have greatly favored the object of the Nationals, but it 
was rejected by a decided vote. Here is the journal of 
the Convention.* Only three States voted for it, wdiile 
seven voted against it. It was then immediately after- 
wards that Luther Martin, of Marjdand, the strongest 
States-Rights man, perhaps, in the Convention — one who 
would, under no circumstances, consent to any infringe- 
ment upon the ultimate Sovereignty of the States, or 

* EllioVs Debates, vol. i, p. 207. 



16 CONSTITUTIONAL TIVAY OF TTIK WAR. [A^ol. I. 

agree to any thing tending to change the character of the 
Federal system, offered a proposition in these words: 
*' That the legisLative acts of the United States, made hy 
virtue and in pursuance of the articles of Union, and all 
treaties, made and ratified under the authority of the 
United States, shall be the supreme law of the respective 
States, as far as those acts or treaties shall relate to the 
said States, or their citizens and inhabitants; and that 
the Judiciaries of the several States shall be bound 
thereby in their decisions, any thing in the respective 
laws of the individual States to the contrary notwith- 
standing." 

\ This proposition expressly restricted the authority of 

the United States, in all cases within the sphere of its 
delegated powers. It refused to confer upon the General 
Government the power or the right to judge of infrac- 
tions upon the Articles of Union on the part of the 
States. It was a limitation against any construction by 
implication to that effect, and simply declared a truth, as 
Hamilton said of it. It simply asserted what would 
have been the result under fair construction without it ; 
but it was offered from abundant caution, and was unani- 
mously agreed to, as appears from the Journal on the 
same page. It was subsequently put in the form in 
which it is now found in the Constitution, by the com- 
mittee on style and revision. There was no change in 
substance. And that it did not answer the purpose of 
the Nationals, as now contended for by many, appears 
conclusively, not only from the opinion of Hamilton 
cited ; but from the action of the Nationals themselves 
in the Convention afterwards. For, notwithstanding 
this clause was agreed to, as stated, on the 17th of July, 
yet we lind that the very identical original proposition 
was again offered on the 23d day of August afterwards, 



Col. I.] ALL COMPACTS SUPREME LAW. 47 

as appears on the Journal, page 260. It then met with 
no greater favor than it did at first. The Convention 
refused to entertain it, and it was withdrawn. More- 
over, I will here add, that no truth is better established 
than that the general view and understanding of the 
advocates of the adoption of the Constitution in that 
day, in reference to this clause, were in conformity with 
those given by Mr. Hamilton. That is, that no power 
was granted by the clause — that it simply declared a 
truth — that it was intended as a limitation of powers 
delegated, and only announced a principle that would 
have been recognized by the Courts, even if it had not 
been made, or in other words, that this clause did not in 
the least change the character of the former Government 
in this respect, and that the acts of the General Govern- 
ment, under the present Constitution, are no more 
binding on the States, or the citizens of th.e States, by 
virtue of it, than they were under the Confederation. 
This was the o[)inion of Mr. Madison. Here, in a num- 
ber of the Fidendisf, written by him (No. 37), he shows 
tliat "treaties made by Congress, under the Articles of 
Confederation, had been declared by Congress, and 
recognized by most of the States, to be the supreme law 
of the land," without any such declaration to that effect 
in the Articles of the Union. And further, if fiu^ther 
argument b(^ necessary to show the prevailing opinion 
at that time, I refer you to a decision of the Supreme 
Court of the United States, made in 179G. In this case, 
Ware, etc. vs. Illltoji, etc., M Dallas, 199, Judge ChatK; 
says : " It seems to me that treaties made by Congress, 
according to the Confederation, were superior to the laws 
\i^ the States, because the Confederation made them obli- 
gatory in all of the States. They were so declared by 
Congress, on the loth of April^ 1787, were so declared 



4S CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

by the Legislatures and Executives of most of the States, 
and were so decided by the judiciary of the General. 
Govei innent, and b}^ the judiciaries of some of the Stat;? 
Governments." So it appears conclusively from the 
language of the clause, from the opinions of Mr. Hamil- 
ton, and Mr. Madison, and Judge Chase of the Supreme 
Court of the United States, that the proposition ofiered 
by Mr. Martin, and incorporated substantially in the 
Constitution, conferred no more power under the new 
Constitution than existed without the declaration under 
the Confederation. 

Prof. Norton. Your position, then, is simply this : 
that this clause in the Constitution effected no radical 
or substantial change in the character of the General 
Government from wdiat it was before. That if it was 
not vested with complete Sovereignty over the State 
authorities, and entitled to the allegiance of the citizens 
of the several States under the Confederation, that it did 
not become so vested by virtue of this clause of the 
Constitution. 

Mr. Stephens. Exactly so. That is my position, and 
I will add that Judge Chase, in the same opinion from 
which I have just read, and to which we may have 
occasion to refer asrain, held that under the Confederation 
the States severally were clothed with all the attribute;? 
of perfect sovereignty. And yet the Articles of Confede- 
ration were the Supreme law of the land as much as the 
Constitution now is. All compacts between sovereigns 
are the supreme law over their subjects or citizens so 
long as they continue. This is the doctrine of Vattel. 
General Pinckney, in the South Carolina Convention, 
when this clause of the Constitution was under discus- 
sion, after quoting Vattel to this effect, goes on : " Bur- 
lam aqui, another writer of great reputation on political 



Col. I.l ARTICLES OF CONFEDERATION SUPREME LAW. 49 

law, says, ' that treaties are obligatory on the subjects 
of the powers who enter into treaties ; they are obliga- 
tory as cmiventlons hetween the contracting powers ; but 
they have ilia force of law with respect to their subjects.' 
7'hese are his very words : ' Us ont force de lot a Vegard 
des sujets, comid^res crnnme tels; and it is very manifest, 
continues he, 'that two sovereigns, who enter into a 
treaty, impose, by such treaty, an obligation on their 
subjects to conform to it, and in no manner to contnv 
vene it."* Every treaty existing, to-day, between the 
United States and every other Government or Govern- 
ments is the Supreme law over the subjects of such 
Government or Governments, as well as over the citizens 
of the several States of this Union. That is, every such 
treaty is a law, Superior to all other local laws in both 
countries, over which it operates. Their Courts are 
bound to so hold, and do so hold. This no more affects 
the allegiance of the subjects of those Governments than 
it does the allegiance of the citizens of these States 
These treaties are Compacts between the Parties to them, 
and Ums as to their subjects or citizens. 

This clause in the Constitution, therefore, settles 
nothing on the question of allegiance. The Consti- 
tution may be a bare convention or compact between 
the States as Sovereigns, and yet be the supreme law 
while it continues over their citizens, without affecting 
their ultimate allegiance in the sliglitest degree. So we 
will proceed with our inquiry as to the nature of the 
present Government of the United States, and enter 
into an examination of the vexed question, where, under 
it, the ultimate Sovereign power resides. These are 
essential facts first to be ascertained and settled. 

* EllioVs Debates, vol. iv, page 279. 
4 



COLLOQUY II. 

rWQiriRT INTO THE NATURE OF THE UNION — A BRIEF HISTORICAL SKETCH — 
THE DECLARATION OF INDEPENDENCE — THE FIRST CONFEDERATION — A 
COMPACT BETWEEN SOVEREIGN STATES — JUDGE STORY REVIEWED. 

Mr. Stephens. The object of our immediate inquiry, 
is the nature of the Government of the United States, 
and where under it dwells or resides that Paramount 
authority which in the hist resort can rightfully and 
peaceably make and unmake Constitutions, and to which 
allegiance is due. Is it in the whole mass of the people 
of the United States, territorially considered as one 
Nation, or in the People of the States, severally and 
separately, each for itself, untramelled by any obliga- 
tions or restrictions incurred or imposed by any Articles 
of Union existing between them ? 

To understand and decide this question correctly, a 
brief historical review is necessary. From what has 
been said and assented to, it clearly appears that some- 
thing exists in this country which by all sides is called 
" the Union." This must have parties of some sort. It 
requires parties to make any thing bearing the designa- 
tion of Union. Who are the parties to this Union ? Are 
they the whole mass of the People, or are they States ? 

It also appears in the same way, that what is called 
the Constitution of the United States sets forth the 
terms of this Union, so admitted to exist on all sides. 
Now, to understand the force and meaning of the terms 
used in this written instrument called the Constitution, 
50 



Col. II.] HISTORY OF THE UNION TRACED 5i 

it is essential to know the state of tbino:s existinor, and 
the relations which the Parties to the Union under it 
bore toward each other before its formation or adoption. 
To understand the force and effect of a new law, it is 
often necessary to inquire into the old law upon the 
same subject-matter, in order to see the evils under the 
operation of the old one, and the objects aimed at in the 
remedies provided by the new. To understand properly 
the present Supreme law, Vv^e must look into what was 
the Suprenie law before. The present is not the first 
Constitution of the United States. '" The Union" ex- 
isted under an old Constitidion. The main object of the 
present Constitution, as appears in its preamble, was to 
make " the Union" then existing more perfect. It was 
not to make a new one, or to change the fundamental 
character of the one then existing ; no such purpose at 
least is declared on the face of the instrument ; it was 
only to make the previous " Union" more perfect, or bet- 
ter adapted to secure the great objects for which it had 
been originally formed. 

Prof. Norton. The first Union to which you re- 
fer was nothing but a Confederation between States. 
The terms of that Union w^ere called Articles of Con- 
federation. They were not called a Constitution. I 
cannot concede the propriety of styling the Articles of 
Confederation a Constitution. Daniel Webster on some 
occasion said — '' If there is one word in the English 
language that the people of the United States under- 
stand, it is the word Constitution. It means," said he, 
" the fundamental law," and nothing like League, or 
Compact, or Articles of Confederation. I have often 
thought of the point and force of his illustration on 
that occasion, of the importance and the power of worJs 
barely. 



52 COxNSTITUTIONAL YIEW OF THE WAR. [Vol. I 

Mr. Stephens. Mr. Webster did say something like 
what you quote him as saying. I remember it well, and per- 
hai3S may have something more to say about him and his 
position in the exposition of the Constitution he made on 
the occasion to which you allude, before we get through. 
But were not the Articles of Confederation a Constitu- 
tion even according to his own definition ? Did they not 
constitute the fundamental law of the Union of the States 
under the Confederation of which you speak ? Being 
the fundamental law for their government for the time 
being, is it not perfectly proper to style them a Constitu- 
tion upon the authority of Mr. Webster himself? In so 
styling them, I use the same term that has been applied 
to them by the highest authority, not only of that day, 
but since. As you question its propriety, however, we 
had better settle all points of difference as we go along, 
especially as a great deal often depends upon words barely, 
which are frequently, as Mr. Webster says, much more 
than sounds, being real things within themselves. Let 
me therefore just here refer to some authorities which I 
think clearly justify the use of the term as made by me. 
Mr. Curtis, in his IllsUrnj of the Constitution of the 
United States, volume i, page 139, says these Articles of 
Confederation were " the first written Constitution of the 
United States." Here is MarshalVs Life of Washington, 
volume ii, page 83. In it is Washington's letter to the 
Governors of the several States, dated 8th of June, 1783, 
in which he speaks of the Articles of the then existing 
Confederation as " the Constitution'' of the States. Here 
is the first volume of Elllofs Debates ; on page 9G, is 
given, in full, a letter from the then Congress to the seve- 
ral States, making several recommendations to them. It 
is dated 18th of April, 1783. In this letter, on page 98, 
these words occur : " The last object recommended is a 



Col. II.J HISTORY OP THE UNION TRACED. 65 

Constitutional change of the rule bj which a partition ol 
the common burthens is to be made." This shows that 
the men of that day understood the Articles of " the 
Union" then existing to be a Constitution. Changes in 
these Articles they characterized as Constitutional changes. 
Here is the ninth volume of Sparhs's Writings of Wash- 
imjton. In this are given quite a number of letters writr 
ten by him in 1788, after what I call the new Constitu- 
tion had been agreed to by a Convention of the States in 
1787, of which we shall have much to say perhaps here- 
after. In these letters, Washington called this instru- 
ment, as I did, the neiu Constitution. Here is a letter 
written on the 23d of February, 1789, to Mr. Monroe, 
in which Washington says : " I received, by last night's 
mail, your letter dated the fifteenth of this month, with 
your printed observations on the 7ieiu Constitution,'' etc. 
Here is another letter written by Washington to Henry 
Lee, under date 22d September, 1788, in which he also 
calls it the new Constitution. Another to Benjamin Lin- 
coln, on the 26th of October, 1788, in which he uses the 
same language. These letters (and I refer to but few of 
them) show, beyond cavil, that Washington considered 
the old Articles of " Union," as much as the new, a Con- 
stitution. Besides this, the writers in the Federalist 
usually designated the paper then before the States for 
their consideration as the new Constitution in contradis- 
tinction to the old or the Articles of Confederation. I 
cite but a few of them: Numbers 22, 39, 41 and 44, 
pages 147, 255, 296 and 324, in I)mvson''s edition of the 
Federalist. Moreover, two of the States at least, Massa- 
chusetts and New Hampshire, in their Ordinances adopt- 
ing and ratifying the present Constitution, expressly style 
it a new Coiistitution. Is more authority needed on this 
point to justify my use of t^e term Constitution in apply- 



54 COXSriTUTIONAL VIEW OF TUE WAR. [Vol.1. 

ing it as T did to the Articles of Confederation, as well as 
to the Articles of the present " Union," whatever they 
may be. The first was a fundamental law as long as it 
Icsted ns much as the other. 

Major Heister. No farther authority, I think, ia 
necessary. The Professor, from the expression of hia 
countenance, seems to be gracefully giving it up. 

Mr. Stephens. Well, then, if the old Articles of 
Union were a Constitution, the new Constitution is but 
new Articles of Union between the same parties ; unless 
the new Constitution changes fundamentally the charac- 
ter of '' the Union" then existing between them. The 
bare change of name, of course, does not affect any change 
of substance. 

Preliminaries being settled thus fir, let us proceed with 
the historic sketch, which I said was necessary for a clear 
understanding of the subject. 

Thirteen of those bodies now known as States of " the 
Union," were originally, or before the date of our common 
history. Colonies of Great Britain. Some of them were 
known as Provincial Colonies, some Proprietary, and 
some Charter Colonies, but all Colonies of Great Britain. 
These thirteen Colonies were New Plampshire, Massachu- 
setts, Connecticut, Rhode Island, New .York, New Jersey, 
Delaware, Pennsylvania, Maryland, Virginia, North Caro- 
lina, South Carolina, and Georgia. These were all dis- 
tinct political organizations, having no connection what- 
ever between each other, ejccept that the inhabitants. of 
all were common subjects of the Government of Great 
Britain. They were all planted at different times, and 
had different forms of government; that is, the Constitu- 
tions or Charters of no two of them were alike, though 
all were founded upon the representative principle. They 
were all free Democratic Governments. The Charter of 



Col. II.l FIRST UNION, 1774 55 

the Virginia Government was the oldest ; it dates back 
to 1606. Tiie charter of the last of these Colonies was 
that of Georgia; it was granted in 1732. These Colo- 
nies, as stated, were all separate and distinct political 
bodies, without any direct permanent political connectioji 
between them until 1774. It is true, in 1643, a Conven- 
tion or Union of some sort for their own mutual protection, 
was formed between two or more of the New England 
Colonies, a name given to all those lying East of New 
York, which lasted until 1683-4,* when it wa.s dissolved 
by the abrogation of their original charters by the Brltisii 
Government. No farther notice, therefore, for our present 
object need be taken of that " Union" or its character. 
Subsequently, in 1754 and 1765, attempts were made by 
certain Colonies to form some sort of a general Union or 
Confederation of all these Colonies for their better pro- 
-tection, in combined efforts against the Indians, as well 
as for joint consultation between themselves on questions 
of policy adopted by the mother country touching their 
common interests. These efforts failed. No Union of 
any sort resulted from them. The last and successful 
effort was made in 1774. This was at the instance of 
Virginia. This was after what is known as the Boston 
Port Bill passed the British Parhament, and after the 
act of Parliament again changing the Charter of the 
Massachusetts Colonial Government, and against her 
consent. These measures awakened a profound sensa- 
ii«ni in all the Colonies, though the blow was aimed di- 
rectly at one of them only, yet they all saw that the 
principle involved the rights and liberties of each seve- 
rally. Virginia appealed to all to send up delegates to 
General Convention or Congress, for joint consultation 



* Bancroft- s Histort/ United States, vol. ii, p. 127. 



i 



56 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

and concert^ of action. Mr. Webster once said that the 
American Revolution was fought on a Preamble — on the 
Preamble of the act of Parliament, which, while it re- 
duced the tax on tea to a nominal amount, yet declared 
the ridit of the British Parliament to tax the Colonies 
in all cases whatsoever. This statement has in it much 
more of the exuberance of a figure of rhetoric than the 
exact accuracy of historical statement. The first moving 
cause which aroused all the Colonies to that concert of 
action which ended in the Revolution, was the direct 
assault of the British Government upon the chartered 
Rights of McissacJmsetts* This, and not the tax on tea, 
or what was contained in the Preamble to that act, is 
what caused the Colonial Legislature of Virginia to pass 
an order appointing a day for fasting, humiliation and 
prayer, to implore the Divine interposition for averting 
the heavy calamity which threatened their civil rights, 
and which caused them, when dissolved on account of 
this Resolution by their Royal Governor, to call for a 
Congress of all the Colonies.f 

It was tlien that the cry went up^ from the St. Croix 
to the Altamaha, " the cause of Boston is the cause of 
all." The violation of the chartered rights of Massachu- 
setts, prompted the call for a general Congress. This 
was the moving cause. This appeal, made by Virginia, 
was responded to by the Colonies generally. The result 
was the assemblage of deputies from twelve Colonies, 
which met at Philadelphia on the fifth of September, 
1774. This is the first Convention or Congress of the 
Colonies from which the present '' Union" sprur.g. The 
first thing settled in this Congress was the nature of its 



* Curtis''s History of the Constitution, vol. i, p 6. 
t Id. vol. i, p. 11. 



Col. II.] FIRST UNION A UNION OF COLONIES. 57 

own eliaracter and organization. It was determined to 
be a Congress of separate, distinct political bodies. In 
all its deliberations each Colony was to be considered as 
equal, and each was to have an equal vote and voice 
upon all questions coming before it, without reference to 
the number of delegates sent up by the respective Colo 
nies ; for the object of all was the defence and preserva- 
tion of what was claimed to be the inalienable right of 
each.* 

This Congress, so organized and so constituted, after 
making a declaration of the indefeasible Rights of all the 
Colonies, made several recommendations to the Govern- 
ments of the Colonies respectively, as to the course which 
should be adopted by them in common, for a redress of the 
wrongs of each in particular. After this action, this body 
was dissolved, with a recommendation to the Colonies to 

* EllioVs Debates^ vol. i, p. 42, et sequens. The object of the meeting 
of this Congress may be seen from some of the powers conferred on their 
delegates in several of the Colonies : 

Virginia : " To consider of tlie most proper and effectual manner of 
so operating on the Commercial connection of the Colonies with the 
Mother country, as to procure redress for the much-injured Province of 
Massachusetts Bay, to secure British America from the i-avage and ruin 
of arbitrary taxes, and speedily* to procure the retiirn of that harmony and 
union so beneficial to the whole empire, and so ardently desired by all 
British America." 

Maryland: "To attend a General Congress to assist one general 
plan of conduct operating on the Commercial connection of the Colonies 
with the mother country, for the relief of Boston and the preservation 
of American Liberty." 

South Carolina : " To consider the acts lately passed, and bills 
depending in Parliament with regard to the Port of Boston and Colony 
of Massachusetts Bay ; which Acts and Bills, in the precedent and con- 
sequence, atlect the whole Continent of America. Also the grievances 
under which America labors, by reason of the several acts of Parliament 
that impose taxes or duties for raising a revenue, and lay unnecessary 
restraints and burdens on trade, etc." The defence of the rights of 
Massachusetts was a leading object with all. Note on page 21 of Judge 
Upshur on the Nature of the Federal Government. 



58 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I, 

meet in Congress again by deputies, on the tenth of May, 
1775. The Colonies did accordingly send up deputies to 
another Congress as recommended, which assembled on 
the tenth of May, 1775, as recommended. All the thir- 
teen Colonies, above stated, were represented by dclc" 
gates in this Assemblage. This is the Congress by which 
the first permanent " Union" between the Colonies was 
formed. At first, as their predecessor, they adopted various 
measures and recommendations for the relief of grievances, 
which failing, they came to the conclusion finally, on the 
fourth day of July, 1776, that the only hope for the in- 
alienable as well as chartered liberties of each was for all 
to throw off their allegiance to the British Crown and to 
declare their separate Independence of it. Tliis is the 
Congress, or body of men, that formed the Articles of 
Confederation to which you referred, and wnich Mr. 
Curtis styles, as I have shown, the first written Coii- 
stitution of the United States. This was the first 
" Union." And after this brief historical review, with 
these further preliminaries settled, I proceed to assert, 
as a matter of history; that the former "Union," or "the 
Union" under the Articles of Confederation, the first Con- 
stitution, was a " Union" of septtrate, distinct. Sovereign 
and Independent States. In other words, that the thir- 
teen States, formerly British Colonies, after they asserted 
their Independence as Sovereign States, entered into " a 
Union" as separate Sovereignties, and that it was a Union 
of States, as States. This " Union" was formed in 1777, 
during the common struggle of all the States for the sepa- 
rate and several Independence and Sovereignty of each. 
Eleven States, to wit: New Hampshire, Massachusetts, 
Rhode Island, Connecticut, New York, Pennsylvania, 
New Jersey, Virginia, North Carolina, South Carolina, 
and Georgia, ratified that "Union" in the year 1778. 



Col. II.] STORY ON THE FIRST UNION. 59 

Delaware entered it in February 1779, and Maryland in 
March 1781.'^ Each of these States entering into it did 
so as a distinct, separate, Sovereign political body. This 
was " the Union" of the Confederation, as you styled it. 
Mr. Curtis, in hia History of the Constitution of the JJniial 
States, to which I have just referred, in speaking of 
" this Union," says : " the Parties to this instrument (the 
Articles of Confederation) were free. Sovereign, politic;il 
Communities — each possessing within itself all the pow- 
ers of Legislation and Government over its own citizens, 
which any political Society can possess."'!* 

This, I assume, then, as an unquestionable truth or 
fact in our History, from which we may start in our in- 
quiry. 

Judge Bynum. I am not prepared to grant that. II 
I recollect correctly. Judge Story, in his Commentaries on 
the Constitution of the United States, utterly overthrows 
and refu^^es the facts upon which that assumption is b.ised. 
He denies that the States were ever separate distinct 
Sovereign, political Societies or bodies. He maintains 
that the people of the United States became one Nation 
even before the Articles of Confederation were entered 
into, and that the Sovereignty of the whole was merged 
into one during the joint struggle of all for independence, 
which was achieved by the whole for the whole, and not 
for parts separately. Have you Story on the Goivstitutionf 
I am a disciple of Story on this question, as well as on 
all other questions of Constitutional hiw ! I think Mot- 
ley, the historian, also takes the same view of this subject 
as Story. Have you at hand what these writers have 
said on this point? 

Mr. Stephens. Yes ; I have Story s Commentaries on 

* MlioVs DehatPs^ vol. i, p. 78. 

t Cwtis on the Constitution of the United States, vol. i, p. 142. 



60 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

tJie Constitution, and also Mr. Motley's article to the Lon- 
don Tunes, to which, I suppose, you refer. I am quite 
f.iiniliar with both. Here is what you refer to in Stonj, 
I suppose. Volume i. Book ii. Chap, i, § 210. 

Judge Bynum. Yes, this is it. Now hear w^hat he 
says : and see how completely he disproves the fact upon 
which your whole argument is about to be founded. 

" Now it is apparent, that none of the colonies before 
the Revolution were, in the most large and general sense, 
independent, or Sovereign communities. They were all 
originally settled under, and subjected to the British 
crown Their powers and authorities were derived from, 
and limited by their respective charters. All, or nearly 
all, of these charters controlled their legislation by pro- 
hibiting them from making laws repugnant, or contrary 
to those of England. The Crown, in many of them, pos- 
sessed a negative upon their legislation, as well as the 
exclusive appointment of their superior officers; and a 
right of revision, by way of appeal, of the judgments of 
their courts. In their most solemn declarations of rights, 
they admitted themselves bound, as British subjects, to 
allegiance to the British Crown; and, as such, they claimed 
to b(? entitled to all the rights, liberties, and immunities 
of free born British Subjects. They denied all power of 
taxation, except by their own Colonial Legislatures ; but 
at the same time they admitted themselves bound by 
acts of the British Parliament for the regulation of exter- 
nal commerce, so as to secure the commercial advantages 
of the whole empire to the mother country, and the com- 
mercial benefits of its respective members. So far, as 
respects foreign States, the Colonies were not, in the sense 
of the laws of nations. Sovereign States ; but were depen- 
dencies of Great Britain. They could make no treaty, 
declare no war, send no ambassadors, regulate no inter- 



Col II.] STORY ON THE FIRST UNION. 61 

course or commerce, nor in any other shape act, as Sove- 
reigns, in the negotiations usual between independent 
States. In respect to each other, they stood in the com- 
mon rehxtion of British subjects ; the legisLation of neither 
could be controlled by any other; but there was a com- 
mon subjection to the British Crown If in any sense 
they might claim the attributes of Sovereignty ; it was 
only in that subordinate sense, to which we have alluded, 
as exercising within a limited extent certain usual pow- 
ers of Sovereignty. They did not even affect to claim a 
local allegiance. 

" In the next place, the Colonies did not severally act 
for themselves, and proclaim their own independence. It 
is true, that some of the States had previously formed 
incipient Governments for themselves ; but it was done 
in compliance with the recommendations of Congress. 
Virginia, on the 29th of June, 1776, by a Convention of 
Delegates, declared 'the Government of this Country, as 
formerly exercised under the Crown of Great Britain, 
totally dissolved ;' and proceeded to form a new Constitu 
tion of Government. New Hampshire also formed a 
Government, in December, 1775, which was manifestly 
intended to be temporary, ' during,' as they said, ' tli6 
unhappy and unnatural contest with Great Britain.' 
New Jersey, too, established a frame of Government, on 
the 2d of July, 1776; but it was expressly declared that 
it should be void upon a reconciliation with Great Britain. 
And South Carolina, in March, 1776, adopted a Constitu- 
tion of Government; but this was, in like manner, 
' established until an accommodation between Great 
Britain and America could be obtained.' But the De- 
claration of the Independence of all the Colonies was the 
united act of all. It was ' a Declaration by the Repre- 
Bentatives of the United States of America, in Congress 



62 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

assembled ;' '■ by the Delegates, appointed by the Good 
People of the Colonies,' as in a prior Declaration of 
Rights they were called. It was not an act done by the 
State Governments, then organized; nor by persons 
chosen by them. It was, emphatically, the act of the 
wliole People of the United Colonies, by the instrumen- 
tality of their Representatives, chosen for that, among 
other purposes. It was an act, not competent to the 
State Governments, or any of them, as organized under 
their Charters, to adopt. Those Charters neither con- 
templated the case, nor provided for it. It was an act 
of original, inherent Sovereignty, by the People them- 
selves, resulting from their riglit to change the form of 
Government, and to institute a new Government, when- 
ever necessary for their safety and happiness. So the 
Declaration of Independence treats it. No State had 
presumed, of itself, to form a new Government, or to 
provide for the exigencies of the times, without consult- 
ing Congress on the subject ; and when they acted, it 
was in pursuance of the recommendation of Congress. It 
was, therefore, the achievement of the whole for the 
benefit of the whole. The People of the United Colonies 
made the United Colonies free and independent States, 
and absolved them from all allegiance to the British 
Crown. The Declaration of Independence, has, accord- 
ingly, always been treated as an act of Paramount and 
Sovereign authority, complete and perfect, j)cr se ; and, 
ipso facto, working an entire dissolution of all political 
connection with, and allegiance to, Great Britain. And 
this, not merely as a practical flict, but in a legal and 
Constitutional view of the matter by Courts of Justice. 

'' In the debates in the South Carolina Legislature, in 
January, 1788, respecting the propriety of calling a Con- 
vention of the People, to ratify or reject the Constitu- 



Col. iT.j STORY ON THE FIRST UNION. 63 

tion, a distinguished Statesman used the following lan- 
guage : ' This admirable manifesto [i. e.^ the Declaration 
of Independence] sufficiently refutes the doctrine of the 
individual Sovereignty and Independence of the several 
States. In that Declaration, the several States are not 
even enumerated ; but, after reciting, in nervous lan- 
guage, and with convincing arguments, our right to Inde- 
pendence, and the tyranny which compelled us to assert 
it, the Declaration is made in the following words : '" We, 
therefore, the Representatives of the United States, etc., 
do, in the name, etc., of the Good People of these Colo- 
nies, solemnly publish, etc., that these United Colonies 
are, and of right ought to be, free and independent 
States.' " The separate Independence and individual 
Sovereignty of the several States were never thought of 
by the enlightened band of patriots who iramed this 
Declaration. The several States are not even mentioned 
by name in any part, as if it was intended to impress 
Uie maxim on America, that our freedom and inde- 
pendence arose from our Union, and that, w'ithout it, 
we could never be fiee or independent. Let us, then, 
consider all attempts to weaken this Union by maintain- 
ing that each State is separately and individually inde- 
pendent, as a species of political heresy, which can never 
Denefit us, but may bring on us the most serious distresses. 
" In the next place, we have seen that the power to do 
ihis act was not derived from the State Governments ; 
nor was it done generally with their co-operation. The 
question, then, naturally presents itself, if it is to be 
considered as a National act, in what manner did the 
Colonies become a Nation, and in what manner did Con- 
gress become possessed of this National power? The 
true answer must be that, as soon as Congress assumed 
powers, and passed measures, which were, in their nature, 



64 CONSTITUTIONAL VIEW OP THE WAR. [Vol. I. 

National, to that extent, the People, from whose acqui- 
escence and consent they took efiect, must be considered 
as agreeing; to form a Nation." 

Judge Story here maintains and clearly shows that 
the whole people of the United States became one people, 
one political society, and bound together in one National 
Government, by the Declaration of Independence, which 
was one Supreme Sovereign National act, done by the 
Paramount authorit}^, or Sovereignty of the whole 
people of all the Colonies, as one Nation, and that all 
idea of separate State Sovereignty, or of the States ever 
having been separate. Independent Sovereign powers at 
any period of their history, is utterl^^ unfounded. That 
the separate Independence and individual Sovereignty of 
the several States were never thought of by the enlight- 
ened band of patriots, who framed the Declaration of 
Independence. To my mind his positions are unassail- 
able, and his arguments unanswerable. I should like to 
hear what you have to say against them. We will 
postpone Mr. Motley's article until we hear from you in 
reply to Judge Story. 

Mr. Stephens. Perhapswe had better take up Mr. Mot- 
ley first. The one is a complete answer to the other, 
on the question directly now before us ; that is, whether 
the States of our " Union " were ever separate Independ- 
ent Sovereignties. On this point he fully agrees with 
Mr. Curtis. Judge Story wrote in 1833. He was a 
much better lawyer than a histor-an, as we shall see. 
In his preface to these Commentaries, he says : " In dis- 
missing the work, I cannot but solicit the indulgence of 
the public for its omissions and deficiencies. With 
more copious materials it might have been made more 
exact as well as more satisfactory. With more leisure 
and more learning, it might have been wrought up more 



Col. II.] STORY REVIEWED. 66 

in the spirit of political pliilosopliy. Such as it is, it 
may be not wholly useless as a means of stimulating 
abler minds to a more thorough review of the sub- 
ject," etc.* 

Mr. Curtis, who went much more elaborately into the 
subject, wrote in 1854. Mr. Motley's article appeared 
in 1861. Here is that article in the Rehellion Record, 
volume i, page 210. In it, he, like Judge Story, 
attempts to show, that the whole people of the United 
States now constitute one Nation. He arrives at this 
conclusion, however, by a very different chain of reason- 
ing. That chain, and its links, we shall, perhaps, have 
occasion to examine in detail hereafter. Just here, I 
refer only to that part bearing directly upon the ques- 
tion now in issue. This is what he says : 

"The body politic, known for seventy years as the 
United States of America, is not a Confederacy, not a 
compact of Sovereign States, not a co-partnership; it is 
a Commonwealth, of which the Constitution, drawn up 
at Philadelphia, by the Convention of 1787, over which 
Washington presided, is the organic, fundamental law. 
We had already had enough of a Confederacy. The 
thirteen rebel provinces, afterwards the thirteen original 
independent States of America, had been united to each 
other during the Revolutionary War, by articles of Con- 
federacy. ' Tlte said States hereby enter into a firm 
league of friendsiiip icith each other.' Such was the 
language of 1781, and the league or treaty thus drawn 
up was ratified, not by the ^?cq/9Ze of the States, but by 
the State Governments, — the legislative and executive 
bodies namely, in their corporate capacity. 

" The Continental Congress, w^hich was the central 

* Preface to Commentary^ p. 7. 



66 CONSTITUTIONAL YIEW OF THE WAR. [Vol. 1. 

administrative board during this epoch, was a diet of 
envoys from Sovereign States. It had no pmmr to act 
on individuals. It could not command the States. It 
could move only by requisitions, and recommendations. 
Its functions were essentially diplomatic, like those of 
the States General of the old Dutch Republic, like those 
of the modern Germanic Confederation. We were a 
league of petty Sovereignties." 

This is quite enough of this article just now. I quote 
from him no further for the present. We may have to 
refer to other portions of his article again on another 
point as we advance. Mr. Motley, in that portion which 
I have quoted, fully admits and distinctly asserts that 
the first '' Union" was " a Union" of States. Of Sovereign 
States. So much by way of setting off one of these high 
authorities against the other. 

Now what I have to say in reply to Judge Story's ar- 
gument, is, that it would be conclusive of the question if 
it were sustained by the facts ; but being so directly in 
opposition to the great unquestionable facts of our history 
— facts which Mr. Motley could not venture to gainsay 
— facts as well established as that America was discov- 
ered by Columbus, or that the colonies were subject to 
the British Government at the time of their Declaration 
of Independence — it is utterly untenable. 
Judge Bynum. Do you question his flicts ? 
Mr. Stephens. Some of them I most certainly do. 
Indeed, all of them, every one of them, that has any 
material bearing upon the question in issue. I do not 
question the fact that the Colonies, under their Charter 
Governments, were not Sovereign, or that they never 
pretended to be Sovereign, or that they did not claim a 
local allegiance. What has that to do with the question ? 
Nor do I dissent from the statement that the Declaration 



Coi. ir.] STORY REVIEWED. §7 

of Independence was not made by these Charter Govern- 
ments, nor that they were not competent or authorized 
to adopt it. No truth is better established tlnin that — 
but what has that to do with the question ? That the 
Declaration of Independence was entirely revolutionary 
in its character is also true. All admit it. The Decla- 
ration was made with a view to overthrow these very 
Governments, as they were then administered, and the 
authority of the British Crown, under whose auspices 
. they had been established,' or by which they were then 
attempted to be controlled. What need had Judge Story 
to state this fact in the line of his argument ? I do most 
fully agree with him also where he says that those Char- 
ters neither contemplated the case or provided for it. It 
was an act of " original inherent Sovereignty by the peo- 
ple themselves, resulting from their right to change the 
form of Government, and to institute a new Government, 
whenever necessary for their safety and happiness." This 
I fully agree to. But this was done by the Paramount 
authority of the people of each Colony respectively for 
themselves. The Declaration itself was made by the 
people of each Colony, for each Colony, through repre- 
sentatives acting by the Paramount authority of each 
Colony, separately and respectively. The Declaration 
of Independence was, in this way, a joint act of all the 
Colonies, for the benefit of each severally, as well as for 
the whole. The Congress that made it was a Con2;ress 
of States. The deputies or delegates from no State as- 
sumed to vote for it until specially instructed and empow- 
ered so to do. Massachusetts had instructed and em- 
pov/ered her delegation so to act as early as January 
before ; South Carolina in March ; Georgia in April ; 
North Carolina in April; Rhode Island in May; Virginia 
in May; New Hampshire in June; Connecticut m June; 



tJ8 CONSTITUTIONAL VIEW OF THE W A-R. [Vol. I. 

New Jersey in June ; Maryland in June ; Pennsylvania 
and New York were the last. The powers and instruc- 
tions from these States did not arrive until after the 1st 
day of July, which caused a postponement of final action 
of the Congress on the Declaration until the 4 th day of 
that month, when, full powers being received from all 
the States, it was then, after being voted upon by States 
and carried by States, unanimously proclaimed by all the 
States, so in Congress assembled.* The Declaration of 
Independence was, be it remembered, voted upon and 
carried by States, and proclaimed by and in the name 
of States. 

This is the true history of the matter. But the state- 
ment adopted by Judge Story, of the reported remarks 
of Mr. Pinckney of South Carolina, is even more extra- 
ordinary still. 

This statement is, "that the separate independence 
and individual Sovereignty of the several States were 
never thought of by the enlightened band of patriots who 
framed this Declaration." 

That these men did look forward hopefully for a con- 
tinued Union of the States, under a Compact to be formed 
securing the Independence and Sovereignty of each, I do 
not doubt ; but that they did not then consider each as 
an Independent Sovereign power, is wholly at variance 
wdth all the attending facts. The very Declaration itself 
shows this conclusively without going farther into a de- 
tail of these facts. The very title shows how it was 
made. Here it is: "In Congress, July 4th, 1776, the 
unanimous Declaration of the thirteen United States of 
America."f It was the Declaration of States in Congress 

* Bancroft, vol. viii, pp. 449, 450, 475 ; EllioVs Debates, vol. i, p. 60 ; 
Curtis^ s His. Cons., vol. i, p. 51. 
t Sc AiJ}Kndix A. 



Col. II.] STORY REVIEWED. 69 

assembled, by tlieir deputies, empowered by the Para- 
mount authority of each, to make it. The Declaration 
was not that they were to be one State, as New Hamp- 
shire had instructed her representatives to make it,'-' but, 
in their own language, " thirteen free. Sovereign and 
Independent States." This was in strict accordance with 
the instructions of their constituents. The people of the 
several Colonies would not consent for a Declaration to be 
made in any other way. This appears from the instruc- 
tions of all the Colonies or Stales except New Hampshire. 
In their several instructions and powers for the Declara- 
tion of Independence, were instructions and powers for 
forming a Confederation of Independent States.f So uni- 
versal was this sentiment, that Richard Henry Lee's first 
motion for the Declaration of Independence, early in June, 
was not only for Independence, but farther — for ''a plan 
of Confederation, to be prepared and transmitted to the 
respective Coloil.es for their consideration and approba- 
tion."t 

The plan for a Confederation of separate Independent 
Sovereign States, was moved in the very resolution which 

* Bancroft., vol. viii, p. 438. f Bancroft^ vol. vili, pp. 878, 437. 

% Bancroft^ vol. viii, p. 389. 

The following contains the instructions and poAvers given by Maryland 
to her deputies in Congress : 

" Wc, the Delegates of Maryland, in Convention assembled, do declare 
that the King of Great Britain has violated his compact with this people, 
and that they owe no allegiance to him. We have, therefore, thought it 
just and necessary to empower our Deputies in Congress to join with a 
majority of the United Colonies in declaring them free and independent 
States, in framing such further Confederation between them, in making 
foreign alliances, and in adopting such other measures as shall be judged 
necessary for the preseiwation of their liberties : 

" Provided, the sole and exclusive right of regulating the internal 
polity and government of this Colony be reserved to the people thereof. 

We have also thought proper to call a new Convention for the purpose 
of establishing a Government in this Colony." 



70 CONSTITUTIONAL VHEW OF THE WAR [Vol. 1 

proposed the Declaration of their Independence. And 
subsequently, on the 24tli of June, 1776, the Congress 
declared, by resolution, that "all persons abiding within 
any of tlie United Colonies and deriving protection from 
the laws of the same, owed allegiance to the said laws, 
and were members of such Colony ; and that all persons 
passing through, or making a temporary stay in any of 
the Colonies being entitled to the protection of the laws, 
during the time of such passage, visitation, or temporary 
stay, owed, during the same, aUegiance thereto.* 

Hence, with these views and objects, after enumera- 
ting the causes which induced the people of each Colony, 
as a separate political body, or one i^eople, to take the 
course they did, this unanimous Declaration of the thir- 
teen United States, was in these words : " We, therefore, 
the Representatives of the United States of America in 
General Congress assembled (that is of the States thus 
united in Congress assembled), appealing to the Supreme 
Judge of all the world for the rectitude of our intentions, 
do, in the name and by the authority of the good people 
of these Colonies, solemnly publish and declare, that 
these United Colonies are, and of right ought to be, free 
and independent States ; that they are absolved from all 
allegiance to the British Crown, and that all political 
connection between them and the State of Great Britain 
is, and ought to be, totally dissolved ; ai:d that, as free 
and independent States, they have full power to levy 
war, conclude peace, contract alliances, establish com- 
merce, and to do all other acts and things which inde- 
pendent States may of right do. And for the support of 
this declaration, with a firm reliance on the protection 
of Divine Providence, we mutually pledge to each other 
our lives, our fortunes, and our sacred honor." 

* Journals, ii. 216 ; Curtis's History of the Constitution, vol. i, p. 52- 



Col. II. 1 STORY REVIEWED. 71 

The Declaration was then signed by the delegates from 
each Colony or State, separately, each delegation acting 
in behalf and by the Paramount authority of each State 
severally and respectively. 

Judge Story says that this Declaration has always been 
treated as an act of Paramount and Sovereign authority, 
complete and perfect "per se, and ipso facto, working an 
entire dissolution of all political connection with and 
allegiance to Great Britain. This is certainly true to the 
letter. He very cautiously, however, abstains from 
stating, by whose Paramount and Sovereign authority it 
was done, and to what Paramount authority allegiance 
under it was due, and declared to be due, by the States 
themselves in Congress assembled. We have seen that 
it was done by the authority of each State severally and 
respectively, and that the allegiance of the citizens of 
each was declared to be due to each severally and respec- 
tively. 

Strange, indeed, is it, that Judge Story should assert, 
as he does, '' that we have seen that the power to do this 
act was not derived from the State Governments, nor 
was it done generally with their co-operation." This 
language is exceedingly ambiguous. If he meant that it 
bad been seen that the act was not done by the authority, 
nor with the co-operation of the Royal Charter Govern- 
ments, no fact is more readily admitted ; and none could 
be stated, less relevant, or less pertinent; but, if he 
meant to say that it was not done entirely by the author- 
ity of the new Revolutionary Governments, erected in 
e ach State by virtue of the asserted Sovereignty of the 
People thereof, respectively, then, his statement is utterly 
unsustained by the record itself, as well as in direct con- 
tlict with the whole history of the times. The Delegates 
themselves say, in the paper signed by them, that it wai^ 



72 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

done in the name, and by the authority, of the People of 
the Colonies. That is, the Sovereign authority of the 
People of each Colony, respectively. For not one of them 
had any authority to speak for the People of any Colony, 
except the one he was delegated to represent ; nor did 
any one assume or presume to speak for his own Colony, 
until empowered to do so. The object of Judge Story 
seems to have been to produce the impression, without 
positively stating the fact so in truth to be, that the 
Declaration of Independence was a National act. That 
it was not made by the States, as States, but by an 
assembly of men, assuming to speak for the American 
Colonists as one People or Nation ; and that, too, with- 
out any authority v/hatever, except their own assumed 
powers. This is clearly the purport of the concluding 
part of what you read from him. The language used by 
him is most remarkable, coming from such a source. 
" The question," says he, "then naturally presents itself, 
if it is to he considered a National act [he does not 
affirm that it was, but saj^s if it is to he considered so], 
in what manner did the Colonies become a Nation, and 
in what manner did Congress become possessed of this 
National power? The true answer [that is, if it is to he 
considered so, he goes on to say] must be that, as soon as 
Congress assumed power's and passed measures which 
were National, to that extent, the people, from whose 
acquiescence and consent they took effect, must be con- 
sidered as agreeing to form a Nation !" 

Such an argument and such a conclusion, founded 
upon such an IF, you must allow me to say, require all 
Judge Storj^'s reputation, to entitle them to even a mo- 
ment's notice, or to elevate them to the dignity of serious 
consideration. 

You will please excuse me, Judge, for speaking so. of an 



Col. II. I STORY REVIEWED. 73 

argument presented by the founder of your school of 
Politics. I mean no detraction from his real merits. lie 
was, truly, a very great man, in man}^ respects. I knew 
him well, and esteemed him highly. He was a man of 
most charming manners, and of extraordinary attain- 
ments in many departments of learning ; he was an 
accomplished lawyer and a profound Jurist. He was 
an ornament to the Supreme Court Bench, and an honor 
to the country and the age in which he lived. He had, 
however, little to do with Politics. He was, in no sense, 
a Statesman. The science of Government was not the 
one in which his abilities shone to advantage ; and hard 
pressed, indeed, must he have been in his efforts to 
prove that the whole People of the United States now 
constitute one Nation, when he was compelled to resort 
to such logic, to establish so great and so important an 
historical fact ! He was, however, lawyer enough to 
know that, if it could not be thus established, it could 
not be established at all. He knew that, if it be once 
admitted that the States severally were ever Sovereign, 
they are so still, or were up to the beginning of this war 
which was waged against the assertion of this right. 
He so frankly asserts in a subsequent part of his treatise, 
us we shall see as we advance. It was exceedingly 
important, therefore, for the establishment of his theory 
of a unity of the people now as one Nation, to get a con- 
clusion somehow, thai the States were never separately 
Sovereign. But nothing is easier to be done, than to 
show that his conclusion, so drawn, from premises of the 
imagination entirely, has not a solitary fact to stand 
upon. 

Our history at this period rests not upon legends or 
fttbles. That Congress itself did not regard their act as 
the-result of assumed, or unauthorized powers, their acts 



74 CONSTITUTIONAL VIEW OF THE WAR. [Vol. L 

at the time abundantly show. That they did not con- 
sider the Declaration of Independence as a National act, 
or 23ut any such construction upon it, as Judge Story has 
done, appears clearly from what they were then doing. 
At the very time the Declaration or Independence was 
made, a Committee, consisting of one delegate from each 
State, was organized to prepare articles of Confederation 
between the States, as separate, distinct Sovereign 
political Communities.''' That Committee, which was 
appointed on the 11th of June, even before the Declara- 
tion of Independence was agreed to, and in anticipation 
of it, reported the Articles of Confederation, before 
referred to, which, Mr. Curtis says, was the first written 
Constitution of the United States. The title of these 
A rticles speaks for itself. It is in these words : "Articles 
of Confederation and perpetual Union between the States 
of New Hampshire, Massachusetts-Bay, Rhode Island and 
Providence Plantations, Connecticut, New York, New Jer- 
sey, Pennsylvania, Delaware, Marjdand, Virginia, North 
Carolina, South Carolina, and Georgia." After stating 
the style of the Confederacy to be " The United States 
of America," the very first clause in these Articles of 
Union is in these words : " Each State retains its 
Sovereignty, freedom and independence, and every 
power, Jurisdiction and right, which is not by this Con- 
federacy expressly delegated to the United States, in 
Congress assembled." These Articles were reported on 
12th day of July, eight days after the Declaration. f 
Moreover, this argument and conclusion of Judge Story 
aie utterly inconsistent with the facts acknowledged and 
set forth in the treaty of Peace with Great Britain, in 
1783. The very first article of that treaty is in these 
words : J 

* Ourtis''s His. Con.^ vol. i, p. 53. f Curtis^s Uis. Co,i,, vol. i, p. 53. 
t iitatutes at Large, vol. viii, p. 80. 



Col. II.] STORY REVIEWED. 75 

'' His Britannic Majesty acknowledges the said United 
States, viz. : New Hampshire, Massachusetts-Bay, Rhode 
Island and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Maryland, 
Virginia, North Carolina, South Carolina, and Georgia, 
to be free. Sovereign and Independent States; that he 
treats with them as such ; and for himself, his heirs, 
and successors, relinquishes all claim to the Government, 
propriety, and territorial rights of the same, and every 
part thereof." 

The fifth article of the treaty clearly shows liow the 
States, the other party to it, understood it. This is in 
these words : 

'' It is agreed that the Congress shall earnestly recom- 
mend it to the Legislatures of the respective States, to 
provide for the restitution of all estates, rights and pro- 
perties, which have been confiscated, belonging to real 
British subjects, and also of the estates, rights and pro- 
perties of persons resident in Districts in possession of his 
Majesty's arms, and who have not borne arms against 
the said United States. And that persons of any other 
description shall have free liberty to go to any part or 
parts of any of the thirteen Uni^ted States, and therein 
to remain twelve months, unmolested in their endeavors 
to obtain the restitution of such of their estates, rights 
and properties, as may have been confiscated ; and that 
Congress shall also earnestly recommend to the several 
States a reconsideration and revision of all acts or laws 
regarding the premises, so as to render the said laws or 
acts perfectly consistent, not only with justice and 
equity, but with that spirit of conciliation, which on the 
return of the blessings of peace should universally pre- 
vail. And that Congress shall also earnestly recomuK'nd 
to the several States, tbit the estates, rights and pr(;pur- 



76 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

ties of such last mentioned persons, shall be restored to 
them, they refunding to any persons who may be now 
in possession, the hona fide price (where any has been 
given) which such persons may have paid on purchasing 
any of the said lands, rights or properties, since the con- 
fiscation. And it is agreed, that all persons who have 
any interest in confiscated lands, either by debts, mar- 
riage settlements, or otherwise, shall meet with no law- 
ful impediment in the prosecution of their just riglits." 

So far from the Federal Government assuming a 
national character at that time, it would not presume to 
bind the States or enter into an obligation upon matters 
that related to their own separate Sovereign Jurisdiction. 
That Government only engaged to use its influence in 
recommending to the Sovereign States respectively cer- 
tain stipulations. This statement of Judge Story is the 
more remarkable, because it is in direct conflict with 
numerous decisions of the Supreme Court of the United 
States. 

This Court, in the case of Mcllvaine vs. Coxe, 2d Peters' s 
Condensed Reports, page 86, in 1805, held that, "on the 
4th of October, 1776, the State of New Jersey was com- 
pletely a Sovereign, Independent State, and had a right 
to compel the inhabitants of the State to become citizens 
thereof." In delivering the opinion of the Court in this 
case, Mr. Cushing says : " the Court deems it unnecessary 
to declare an opinion upon a point v bich was much de- 
bated in this case, whether a real Eri+ish subject, born 
before the 4th of July, 1776, who never from the time 
of his birth resided within any of the American Colonies 
or States, can upon the principles of the common law 
take lands by descent in the United States; because 
Daniel Coxe, under whom the lessor of the plaintif! 
claims, was born in the Province of New Jersey, long 



Col. IL] STORY REVIEWED. 77 

before tlie Declarcation of Independence, and resided tliere 
until some time in the year 1777, when he joined the 
British forces. 

" Neither does this case produce the necessity of dis- 
criminating very nicely the precise point of time, when 
Daniel Coxe lost his right of election to abandon the 
American cause and adhere to his allegiance to the King 
of Great Britain ; because he remained in the State of 
New Jersey, not only after she declared herself a Sove- 
reign State, but after she had passed laws by which she 
pronounced him to be a member of, and in allegiance to 
the new Government. The Court entertains no doul)t, 
that after the 4th of October, 1776, he became a member 
of the new Society, entitled to the protection of its Gov- 
ernment, and bound to that Government by the ties of 
allegiance." 

One of the points in this case was citizenship, and to 
what power allegiance was due; or in other words, where 
Sovereignty or Paramount authority under our system 
then resided — that is, under the Confederation. These, 
as we settled in the beginning, belong to Sovereignty and 
follow it. In this case the Supreme Court of the United 
States decided that both citizenship and allegiance, in 
177G, after the Declaration of Independence, belonged to 
the States severally and respectively. Further on, in the 
same case, the Court say : '' If then, at the period of the 
treaty of peace, the laws of New Jersey, which mnde 
Daniel Coxe a subject of that State, were in full force, 
and were not repealed, or in any manner affected by that 
instrument — if, by force of these laws, he was incapable 
of throwing off his allegiance to the State, and derived 
no right to do so by virtue of the treaty, it follows that 
he still retains the capacity he possessed before the 
treaty," etc. 



78 CONSTITUTIONAL VIEW OF TITR WAR. [Vol. I 

That capacity was the right to claim citizenship of 
the State of New Jersey, with all its privileges and im- 
munities, with their accompanying obligations, amongst 
which was allegiance to her Sovereignty, which he could 
not throw off. 

In another case decided by the same Court, in Febru- 
ary, 1796, nine years before Ware, etc., vs. HijUon, etc., 
3 Dallas, 199, Chase, Justice, in delivering his opinion, 
says : 

'''The first point raised by the counsel for the plaintiff 
in error was, that the Legislature of Virginia had no right 
to make the law of the 2()th of October, 1777, above in 
part recited. If this objection is established, the judg- 
ment of the Circuit Court must be reversed, because it 
destroys the defendant's plea in bar, and leaves him 
without defence to the plaintiff's action, 

" I would also remark, that the law of Virginia was 
made after the Declaration of Independence by Virginia, 
and also by Congress, and several ^^ears before the Con- 
federation of the United States, which, although agreed 
to by Congress on the 15th of November, 1777, and 
assented to by ten States in 1778, was only finally com- 
pleted and ratified on the first of March, 1781. 

"I am of opinion that the exclusive right of confis- 
cating, during the war, all and every species of British 
property, within the territorial limits of Virginia, resides 
only in the Legislature of that Commonwealth. * * * * 
It is worthy of remembrance, that delegates and repre- 
sentatives were elected by the people of the several 
counties and corporations of Virginia, to meet in general 
Convention, for the purpose of framing a new Govern- 
ment, by the authority of the people only; and that the 
said Convention met on the sixth of May, and continued 
in session until the fifth of July, 1776 ; and, in virtue of 



Col. II.] STORY REVIEWED. 79 

their delegated power, established a Constitution or forn-i 
of Government, to regulate and determine by whom, and 
in what manner, the authority of the people of Virginia 
was thereafter to be executed. As the people of that 
country were the genuine source and fountain of all 
power that could be rightfully exercised within its limits, 
they had therefore an unquestionable right to grant it to 
whom they pleased, and under what restrictions or limi- 
tations they thought proper. The people of Virginia, by 
their Constitution or fundamental law, granted and dele- 
gated all their supreme civil power to a Legislature, an 
Executive, and a Judiciary ; the first to make; the second 
to execute ; and the last to declare or expound the laws 
of the Commonwealth. This abolition of the old Gov- 
ernment, and this establishment of a new one, was the 
highest act of power that any people can exercise. From 
the moment the people of Virginia exercised this power, 
all dependence on, and connection with. Great Britain, 
absolutely and forever ceased ; and no formal Declaration 
of Independence was necessary, although a decent re- 
spect for the opinions of mankind required a Declaration 
of the causes which impelled the separation, and was 
proper to give notice of the event to the nations of Europe. 
I hold it as unquestionable, that the Legislature of Vir- 
ginia, established as I have stated by the authority of the 
people, was forever thereafter invested with the supreme 
and Sovereign power of the State, and with authority to 
make any laws in their discretion, to affect the lives, liber- 
ties, and property of all the citizens of that Common- 
wealth. * * The Legislative power of every nation can 
only be restrained by its own Constitution ; and it is the 
duty of its Courts of Justice not to question the validity 
oi' any law made in pursuance of the Constitution. 
There is no question but the act of the Virginia Legis- 



80 CONSTITUTIONAL VIEW OF THE WAR. [Vol, I 

lature (of the 20th of October, 1777), was within the 
authority granted to them by the people of that country ; 
and this being admitted, it is a necessary result that the 
Law is obligatory on the Courts of Virginia, and, in my 
opinion, on the Courts of the United States. If Virginia, 
as a Sovereign State, violated the ancient or modern law 
of nations in making the law of the 20th of October, 
1777, she was answerable in her political cnp;icity to the 
British nation, whose subjects have been injured inconse- 
quence of that law. * * * * * * =5: H: * In June, 
1776, the Convention of Virginia was a free, Sovereign, 
and Independent State; and on the fourth of July, 177(>, 
following, the United States, in Congress assembled, 
declared the thirteen United Colonies free and Independ- 
ent States ; and that, as such, they had full power to levy 
war, conclude peace, etc. I consider this as a Declara- 
tion, not that the United Colonies jointly, in a collective 
capacity, were Independent States, etc., but that each of 
them Avas a Sovereign and Independent State ; that is, 
that each of them had a right to govern itself by its own 
authority and its own laws, without any control from any 
other power upon earth !" 

Is authority clearer, stronger, or higlier, needed to shov/ 
the utter groundlessness of Judge Story's argument? If 
so let us turn to what Chief Justice Marshall said, in 
delivering the decision of the Supreme Court of the 
United States, in the great case of Gibbons vs. Ogden, in 
1824. Here it is: 

"As preliminary to the very able discussion of the 
Constitution which we have heard from the bar, and as 
having some influence on its construction, reference ha? 
been made to the political situation of these States 
anterior to its formation. It has been said that they 
were Sovereign, were completely Independent, and wej^ 



Col. IL] REVIEW OF STORY CO^'CLUDKD Si 

connected with each other only by a league. This is 
true 1"=^ 

Judge Marshall here distinctly affirms, judicially 
nffirms, from the Bench of the Supreme Court of the 
United States, that the States were separate and distinct 
Sovereignties when the Articles of Confederation were 
entered into, and that these articles were but a league 
between Sovereign Powers. 

Prof. Norton. Judge ; these authorities seem to be 
strong and to the point. 

Mr. Stephens. Strong ! Wh}^, sir, there is no an- 
swer to them. Judge Story's account of the matter, 
and his whole argument built upon it, has not a single 
fact to rest upon ; and unless something can be offered 
in reply, not to me, but to these authorities, I shall 
take up no more time in establishing the correctness 
of the assumption with which I set out, that is, that 
the States, in forming their first political Union, from 
which the present sprung, entered into it, as free, Sove- 
reign, Independent Powers, or, in other words, in the fur- 
ther prosecution of our inquiry, we may now take it as 
an established fact, that Mr. Curtis was right, m saying 
that "the Parties to this instrument (the Articles of 
Confederation) were free. Sovereign, political Communi- 
ties, each possessing within itself powers of Legislation 
and Government over its own citizens, which any politi- 
cal society can possess." 

This is equivalent to saying, that the first Constitution 
was a Compact between Sovereign States, and that the 
ultimate Paramount authority or Sovereignty under that 
union remained and resided with the States severally. 



^ Peters'' s Con. Bep. vol. v, p. 505. 



COLLOQUY III. 

HISTORY OP THE UNION TRACED — ANALYSIS OP THE ARTICLES OP CONVED- 
. ERATION — THE DEFECTS IN THEM TREATED OP — THE CALL OP THE FEDE- 
RAL CONVENTION TO REMODEL THEM — THE SOLE OBJECT OF THIS CON- 
VENTION WAS TO REVISE THE ARTICLES OF CONFEDERATION AND NOT TO 
CHANGE THE BASIS OR CHARACTER OF THE UNION — THIS APPEARS FROM 
THE CALL ITSELF AS WELL AS THE RESPONSES OP THE STATES TO IT — 
THERE WAS NO INTENTION TO CHANGE THE FEDERAL CHARACTER OP T^ ' 
UNION. 

It, then, being historically and judicially established 
that the thirteen States, as separate and distinct Sove- 
reign Powers, declared their Independence, and as such 
entered into their first Union under the Articles of 
Confederation of 1777 or 1781, according as we may 
consider the date of the agreement to the terms of the 
Union by their deputies in Congress, or the time when 
these terms were acceded to and ratified by all the States ; 
it being further established that citizenship and allegi- 
ance were within and under the control of each State 
ander that Confederation as with all other nations ; and 
tl-.at each of the States severally, at this period in our 
history, had full power to confiscate and do what all 
other Sovereign States by the laws of nations may of 
right do; and that the right of Eminent Domain which 
ever accompanies and distinguishes Sovereignty in its 
fullest extent, was possessed by them severally as sepa- 
rate, distinct States, it now devolves upon us to trace 
the history of this Union, so formed, from that time to 
this. If Sovereignty, beyond question, resided with the 

82 



Col. III. J now ONLY SOVEREIGNTY CAN PASS. 83 

States severally at that time, has it ever been changed 
or parted with by them since "i* If it has, it must be shown, 
and shown by evidence and authority of a conclusive char- 
acter. Sovereignty cannot pass by implication. If the 
States were Sovereign when they entered into the Articles 
of Confederation, they must still remain so, unless they 
parted with that Sovereignty in those articles, or in the 
new articles — the new^ Constitution, as it was called — 
of 1787, which are the basis of the present Union. Now, 
in this instrument, the new Constitution of 1787, did the 
States surrender the Sovereignty which they undeniably 
and beyond all question possessed in 1783? In this 
rument have they parted with, their control over the 
.iiizenship and allegiance of their citizens respectively? 
This is the great question. In investigating it, as I have 
said, we must look not only into the instrument itself, but 
into the old Constitution, to understand correctly the evils 
arising under its operation and the remedies applied. 

Here, again, I premise by assuming an unquestionable 
position, and that is, that all grants by Sovereignty are to 
be strictly construed. Nothing can pass by inference or 
implication against Sovereignty. It is a fundamental 
maxim of public law that in construing grants from the 
Sovereign power, nothing is to be taken by implication 
against the power granting; nothing will pass to the 
grantee but by clear and express words. This is true of 
all grants, even of private rights, from the Sovereign 
power, and much more stringently is the rule to be ad- 
Iiered to in grants, purporting to surrender Sovereign 
powers themselves.* It is likewise a universal piinciple 
and maxim of political law, that Sovereign States cannot 



* BroonVs Legal Maxims, p. 260. Vattel, 2d Book, Chap, s vii, 
Se-:;. 305-308. 



84 CONSTITUTIONAL OEW OF THE WAR. [V^'-' 1. 

be deprived of any of their rights by impliccation ; nor 
in any manner whatever but by their own voluiitir^ 
consent or by submission to a conqueror.* 

Now let us examine the Articles of Confederation, as 
they were styled, and see the nature and extent of the 
powers delegated by them.f The stipulations entered 
into by these Articles, as appear from their face, may 
be divided into two classes : 

First, mutual Covenants between the parties, which, at 
that time, we have seen, were beyond question separate, 
distinct. Sovereign States. 

Secondly, delegations of power by the several Parties 
to, the Compact to all the States, to be exercised by them 
jointly, in a general Congress of the States. 

The mutual Covenants between the States, upon analy- 
sis, may be stated as follows : 

1st. The style of the Confederacy was to be " The 
United States of America." 

2d. Each State retained its Sovereignty, freedom and 
Independence, and every povv^er and right which is not 
expressly delegated to the United States. 

3d. The object of the Confederation was for their mu- 
tual defence, the security of their liberties and their mu- 
tual and general welflxre, binding themselves to assist 
each other against all ibrce offered to or attacks made 
upon them, or any of them, on account of religion, Sove- 
roignty, trade, or any other pretence whatever. 

4th. In determining all questions in Congress each 
State was to have one vote. 

5th. Each State was to maintain its own Delegates. 
6th. The free inhabitants of each State, Paupers, Vaga- 



* Twcfcer's Blackstone, vol. i, Appendix, p. 143. 
t See Apioendix B. 



Col. III.] COVENANTS OF THE CONFEDERATION. 85 

bonds and Fugitives from Justice excepted, were to be 
entitled to all privileges and immunities of free citizens 
in the several States. 

7th. All Fugitives from Justice from one State into 
another were to be delivered up on demand^ 

8th. Full ftxith and credit were to be given to the 
records of each State in all the others. 

9th. Congress was to grant no title of nobility. 

10th. No person holding any office was to receive a 
present from a foreign power. 

11th. No State was to form any agreement or alliance 
with a foreign power without the consent of the States 
in Congress assembled. 

I'ith. No two or more States were to form any alliance 
between themselves, without the like consent of the 
States in Congress assembled. 

loth. No State, without the like consent of Congress, 
was to keep war ships or an army in time of peace, but 
each was to keep a well organized and disciplined militia 
with munitions of war. 

14th. No State was to lay any duty upon foreign im- 
ports which would interfere with any treaty made by 
Congress. 

15th. No State was to issue letters of marque or to 
engage in war without the consent of the Congress, un- 
less actually invaded or menaced with invasion. 

16th. When land forces were raised, each State was 
to raise the quota required by Congress, arm and equip 
them, at the expense of all the States, and to appoint all 
officers cf and under the rank of colonel. 

17th. Each State was to levy and raise the quota 
of tax required by Congress. 

ISth. The faith of all the States was pledged to pay 
all the bills of credit emitted, or money borrowed, on 
their joint account, by the Congress. 



86 CONSTITUTIONAL VIEW OF THE WAK. [Yol. I. 

10 th. It was agreed aiul covenanted that Canada might 
accede to the Union, so formed, if she chose to do so. 

20th (and lastly). Each State was to abide by the 
determination of all the States, in Congress assembled, 
on all questions which, by the Confederation, were sub- 
mitted to them. The Articles of Confederation were 
to be inviolably observed by every State, and the Union 
was to be perpetual. No article of the Confederation 
was to be altered w^ithout the consent of every State. 

So much for the mutual covenants. 

Secondly. The Delegations of power by each of the 
States to all the States, in general Congress assembled, 
upon a like analysis, may be stated as follow^s: — 

1st. The .sole and exclusive power to determine on 
war and peace, except in case a State should be invaded 
or menaced with invasion. 

2d. To send and receive Ambassadors. 

3d. To make Treaties, with a Proviso, etc. 

4th. To establish rules for Captures. 

5th. To grant Letters of Marque nnd Eeprisal. 

6th. To appoint Courts for Trial of Piracies and other 
crimes, specified. 

7th. To decide Questions of Dispute, between two oi 
more States, in a prescribed manner. 

8th. The sole and exclusive power to coin Money^ 
and regulate the value. 

9th. To fix the standard of Weights and Measures. 

10th. To regulate trade wdth the Indian Tribes. 

11th. To establish Post-Offices. 

12th. To appoint all officers of land forces, excepl 
Regimental. 

13th. To appoint all officers of the Naval Forces. 

14th. To make rules and regulations for the Govern 
nient of Land and Naval Forces. 



Cor,. 111.1 DELEGATION OF POWERS. 87 

loth. To appropriate and apply public money for 
public expenses, the common defence and general welfare. 

16th. To Ijorrow money and emit bills of credit. 

17th. To build and equip a ivdyy. 

ISth. To agree upon the number of land forces, and 
make requisitions upon the States, for their quotas, in pro- 
portion to the number of white inhabitants in each State. 

The foregoing powers were delegated, with this limita- 
tion — the war power, the treaty power, the power to coin 
money, the power to regulate the value thereof, the power 
of fixing the quotas of money to be raised by the States, 
the power to emit bills of credit, the power to borrow 
money, the power to appropriate money, the power to 
regulate the number of land and naval forces, the power 
to appoint a commander-in-chief for the army or navy, 
were never to be exercised, unless nine of the States 
were assenting to the same. 

These are the general provisions of the Articles of 
Confederation of 1777-1781. 

Judge Btnum. They are much more numerous and 
embrace a great many more subjects than I was aware of. 

Mr. Stephens. They embrace nearly the entire ground 
covered by the present Constitution. That is apparent 
to all who will carefully compare the provisions of both 
instruments. But the present object, before going into 
an examination of a like analysis of the provisions of 
the new Constitution, is to trace the workings of the old 
one, the evils or mischiefs discovered in its practical 
operation, and the remedies sought to be applied in the 
new. What then were the striking defects in the old 
system, so far as the want of additional powers was 
concerned and the remedy which the new Constitution 
supplied ? Without any fear of successful contradiction, 
it may be said that these consisted of but two. One 



88 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

was the want of power on the part of the States in Con- 
gress assembled, to regulate trade with foreign nations, 
and between the States, as well as with the Indian 
Tribes ; and the other was the want of a like power to 
lay taxes directly upon the people of the several States, 
or to raise revenue b}^ levying duties upon imports, with- 
out resorting to requisitions, or quotas, upon the States, 
in their organized political capacity. This is abund- 
antly clear from the history of the times, and the action 
of the States in Congress assembled, under the Articles 
of Confederation. The first movement for additional 
power, or a change of the Constitution, in any respect, 
was in Congress, on the 3d of February, 1781.* This 
was an adoption by the States, in Congress assembled, 
of the following resolution : 

" Resolved, That it be recommended to the several 
States, as indispensably necessary, that they vest a 
power in Congress to levy, for the use of the United 
States, a duty of five per cent, ad vcdorem, at the time 
and place of importation, upon all goods, wares, and 
merchandise, of foreign growth or manufacture, which 
may be imported into any of the said States, from any 
foreign port, island, or plantation, after the Ist day of 
May, 1781 ; except arms, ammunition, clothing, and 
other articles imported on account of the United States, 
or any of them ; and except wool cards, and cotton cards, 
and wire for making them ; and, also, except salt, 
during the war. 

"Also, alike duty of five per cent, on all prizes and 
prize goods, condemned in the court of admiralty of iiny 
of these States, as lawful prize. 

" That the moneys arising from said duties be appro- 



* E'lioVs Delates, vol. i, p. 92. 



Col. in.] DEFECTS OF THE CONFEDERATION. 89 

priiited to llie discharge of the principal and interest of 
the debts ah'eady contracted, or which may be con- 
tracted, on the faith of the United States, for supporting 
the present war. 

" That the said duties be continued until the said 
debts shall be fully and finally discharged." 

This proposition was not concurred in by the States, 
and it is useless to trace its history and final rejection. 

The second effort at amendment was in 1783, after 
the war was over, and the independence of the States 
acknowledged. On the 18th of April, 1783, Congress 
adopted the following resolution : 

" Resolved, hy nine States, that it be recommended to 
the several States as indispensably necessary to the re- 
storation of public credit, and to the punctual and honor- 
able discharge of the pnl)lic debts, to invest the United 
States, in Congress assembled, with the power to levy, 
for the use of the United States, the following duties 
upon goods imported into the said States from any foreign 
port, island, or plantation," etc.'-' Then follows a long 
list of articles on which it was asked to vest the United 
States, in Congress assembled, with the power to levy 
duties upon, and the rate of duty proposed. 

This request of Congress for additional powers, though 
accompanied by an able and strong letter from Congress 
to the States, asking them to make "the constitutional 
change" proposed, was never acceded to by the States, 
and no farther notice of it is necessary here. 

On the 30th of April, 1784, Congress again "recom- 
mended to the Leii;islatures of the several States to vest 
the United States, in Congress assembled, for the term 
of fifteen years," etc., with certain specified powers o^'er 



EllivVs Debates^ vol. i, p. 93. 



90 CONSTITUTIONAL YIEW OF THE WAR. [Vol. I. 

commerce with foreign nations. This proposition was 
also rejected by the States. Several States agreed to it, 
but it lacked the necessary number to carry it into 
effect. 

The next movement to effect a change in the Articles 
of Confederation was by Mr. Monroe, in Congress, July, 
1785. His proposition was for the States to vest in the 
United States, in Congress assembled, ''the power of 
regulating trade." Congress never acted upon this pro- 
j:)osition. " It was deemed, in the language of the day, 
that any proposition for perfecting the Articles of Con- 
federation should originate with the State Legislatures."^^ 
Accordingly, Mr. Madison went into the Legislature of 
Virginia, and under his auspices a movement was made 
in that body, in December, 1785, with a view to vest in 
the United States, in Congress assembled, the powers 
that had been previously proposed by the Congress. 
This first movement in the Virginia Legislature failed ; 
but subsequently, on the 21st of January, 1786, that 
body passed the following resolution : " Resolved, That 
Edmund Randolph, James Madison, Jr., Walter Jones, 
St. George Tucker, Meriwether Smith, David Ross, 
William Ronald, and George Mason, Esquires, be ap- 
pointed Commissioners, who, or any five of whom, shall 
meet such Commissioners as may be appointed by the 
other States in the Union, at a time and place to be 
agreed on, to take into consideration the trade of the 
United States; to examine the relative situation and 
trade of the said States ; to consider how far a uniform 
system in their commercial regulations may be necessary 
to their common interest and their permanent harmony ; 
and to report to the several States such an act relative 



Elliot's Debates, vol. i, p. 111. 



Cm.. III.J CALL FOR A CONVENTION. 91 

to this great object as when unanimously ratified by 
them, will enable the United States, in Congress assem- 
bled, to provide for the same ; Tiiat the said Commis- 
sioners shall immediately transmit to the several States 
copies of the preceding resolution, with a circular letter 
requesting their concurrence therein, and proposing a 
time and place for the meeting aforesaid."* 

Four other States responded to this resolution of the 
Virginia Legislature, to wit : New York, New Jersey, 
Pennsylvania, and Delaware. They all appointed Com- 
missioaers, as suggested by Virginia. These Commis- 
sioners met in convention at Annapolis, in Mar^dand, 
11th September, 1786. They did nothing, however, but 
make a report to the Legislatures appointing them and 
recommending the calling of a General Convention of 
all the States, to meet at Philadelphia on the second 
Monday in May, 1787, "to take into consideration the 
situation of the United States; to devise such further 
provisions as shall appear to them necessary to render 
the Constitution of the Federal Government adequate to 
the exigencies of the Union; and to report such an Act 
for that purpose to the United States, in Congress assem- 
bled, as when agreed to by them, and afterwards con- 
firmed by the Legislatures of every State, will effectually 
provide for the same.""j' 

As a reason for this course, they say " they are the 
more naturally led to this conclusion, as, in the course 
of their reflections on the subject, they have been in- 
duced to think that the power of regulating trade is of 
such comprehensive extent, and will enter so far into 
the general system of the Federal Government, that, to 
gii^e it eflicacy, and to obviate questions and doubts con 

* Ellioi-'s Debates, vol. i, p. 11.3. f ElUoVs Debates, vol. i, p. 118. 



92 ' CONSTITUTIONAL VIEW OF THE WAR. [Vol.1. 

ce riling its precise nature and limits, may requre a cor- 
respondent adjustment of other parts of the Federal 
system." 

This communication was addressed to the States from 
whom the parties held their commissions, and copies of 
it were likewise sent to the United States, in Congress 
assembled, and to the Executives of all the States. The 
Congress took up the subject on the 21st of February, 
1787, and came to the following resolution upon it: 

" Resolved, That, in the opinion of Congress, it is ex- 
pedient that, on the second Monday in May next, a Con- 
vention of Delegates, who shall have been appointed by 
the several States, be held at Philadelphia, for the sole 
and express purpose of revising the Articles of Confedera- 
tion, and reporting to Congress and the several Legisla- 
tures, such alterations and provisions therein as shall, 
when agreed to in Congress, and confirmed by the Stales, 
render the Federal Constitution adequate lo the exi- 
gencies of Government, and the preservation of the 
Union." 

It was under this resolution of Congress that the ever- 
memorable Federal Convention of 1787 was called and 
met. The initiative step to this movement was the reso- 
lution of the 21st of January, 1786, of the Virginia 
Legislature. Mr. Madison was the author of that resolu- 
tion, though it was offered by Mr. Tyler, father of the 
late Ex-President Tyler. Mr. Madison's agency in first 
starting this movement is what has given him the title of 
father of the present Constitution. In none of these 
proceedings, either in Congress, or in the Virginia Legis- 
lature, or in the communication of the Commissioners at 
Annapolis, is there any intimation of a wish or desire to 
change the nature of the Government, then existing, in 
any of its essential Federative features. It does, how- 



Col. III. 1 OBJECT OF THE CALL. 93 

ever, very clearly appear, from the letter of the Com- 
missioners, that, in granting additional powers to the 
United States, in Congress assembled, it might and would 
be, in their opinion, proper to make " a correspondent 
adjustment of other parts of the Federal system." This, 
doubtless, referred to a division of the powers vested in 
the States, jointly, under the then Constitution. These 
were mostly, as we have seen, committed to one body — 
to the Congress of the States. 

Already, the idea had begun to develop itself, of intro- 
ducing a new feature in the Federal plan — that of divid- 
ing the powers delegated, into Legislative and Executive 
departments, each distinct from the Judicial ; and also 
dividing the Legislative department into two branches, 
or houses; and, further still, of allowing the Federal 
machinery to act directly upon the citizens of the States 
in special cases, and not on the States in their ^.orporate 
capacity, as had been in all former Confederacies. This 
idea, at first, was not fully developed. All new truths 
are slow of development. Mankind, generally, at first, 
see new truths indistinctly ; as the man we read of in the 
Scriptures, who, having been born blind, when his eyes 
were opened, at first, '' saw men, as trees, walking." 
This new feature, or new features, in the Federal plan is 
but dimly shadowed forth in the letter of the Commis- 
sioners, wherein they speak of some necessary corres- 
pondent adjustment of the Federal system. Mr. Jeffer- 
son, soon after, gives the idea more form and substance, 
in a letter to Mr. Madison, written at Paris, 16th of De- 
cember, 1786. Here is his letter : — 

" I find, by the public papers, that your Commercial 
Convention failed in point of Representation. If it 
should produce a full meeting in May, and a broader 
reformation, it will still be well. To make us one nation, 



9i CONSTITUTIONAL YTEW OF TTTK WAR. [Yoi>. I. 

as to foreign concerns, and keep us distinct in domestic 
ones, gives the outline of the proper division of powers 
between the general and particular Governments. But, 
to enable the Federal head to exercise the powers, given 
it, to best advantage, it sJiouId be organized, as tlie particu- 
lar ones are, into Legislative, Executive and Judiciary. 
The first and last are already separated. The second 
should be. When last with Congress, I often proposed 
to members to do this, by making of tbe Committee of 
the States an Executive Committee, duriug the recess of 
Congress ; and, during its session, to appoint a commit- 
tee to receive and despatch all Executive business, so 
that Congress itself should meddle only with what 
should be Legislative. But I question if any Congress 
(much less all successively) can have self-denial enough 
to go through with this distribution. The distribution, 
then, should be imposed on tliem."'='" 

This, as far as I have been able to discover, after no 
inconsiderable research, is the first embodied conception 
of the general outline of those proper changes of the old 
Constitution or Articles of Confederation, Avhich were 
subsequently, as we shall see, actually and in fact, in- 
grafted on the old sjstem of Confederations ; and which 
makes the most marked difference between ours, and all 
other like systems. Of all the Statesmen in this coun- 
try, none ever excelled Mr. Jefierson in grasp of political 
ideas, and a thorough understanding of the principles of 
human Government. 

This is a brief, but unquestionable, history of the com- 
plaints under the old s^-stem. The great leading object, 
at the time, wiin Congress, was to get additional power 
to regulate trade, and to raise revenue directly by law, 

* Jefferson's Coiiiijlete Works, vol. ii, p. 66. 




..sraYeci. D7 HP). Hall. ■from. aiL uxigmal Pnrtrair h 



TniItTJliIl.S ■ JJEI?IP3EIEi§LrM' 




OoL. III.] OBJECT OF THE CALL. 95 

operating on the individual citizens of the States, and 
not on the States in their corporate character. Under 
the Articles of Union, as they then were, Congress could 
regulate trade, as we have seen, with the Indian tribes, 
but not between the States respectively, or with forei.1211 
nations; nor could they raise revenue, as we have seeu, 
except by requisitions upon the States. The main and 
leading objects were to get the Federal Constitution 
amended in these particulars. Could these new ideas 
and new principles be incorporated in a system strictly 
Federal? This was the great problem of that day. Con- 
gress gave consent to the calling of a Convention of the 
States, as desired, for the sole and express purpose of re- 
vising the Articles of Confederation, to the attainment, 
if possible, of these ends and objects. No intimation 
was given, in any of the proceedings that led to the call 
of this Convention, of any wish, much less a desire, to 
change the character of the Federal system, or to trans- 
form it from a Confederate Republic, as it was then 
acknowledged to be, into a consolidated nation. It is 
important to pny strict attention to the proceedings at 
this time. The Convention was called, not to change 
the nature of the General Government, but to delegate 
to it some few additional powers, and to adjust its 
machinery, in accordance with these additional powers. 
It was with this view, and for this purpose, with this 
'' sole and express purpose," that the States, in Con- 
gress, gave the movement their sanction. Now, then, 
how did this matter proceed ? How did the States, in 
their Sovereign capacities, respond to this call fo)- a 
Convention, to change the Articles of their Confedera- 
tion, so as to remedy the evils complained of? Eacli 
of the States, be it remembered, at that time, w\as a 
perfect State, clothed with all the attributes of Sov- 



96 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

ereignty. In our inquiries into the nature and extent 
of the changes in the fundamental law, especially so far 
as they trenched upon the Sovereign powers of the 
States, proposed by that Convention, it is of the utmost 
importance to know what the States did, both anterior to 
the call of the Convention, and subsequently. 

Let us, then, direct our special attention to the 
responses of each of the States to the call itself 
Here are the responses of all of them.* We will take 
them up singly and separately. 

FIRST, GEORGIA. 

The response of my own State is seen in the following 
ordinance : 

" An ordinance for the appointment of deputies from 
this State for the purpose of revising the Federal Consti- 
tution. 

" Be it ordained, by the Representatives of the State of 
Georgia, in General Assembly met, and by authority of 
the same, that William Few, Abraham Baldwin, Wilham 
Pierce, George Walton, William Houston, and Nathaniel 
Pendleton, Esqrs., be, and they are hereby, appointed 
Commissioners, Avho, or any two or more of them, are 
hereby authorized, as deputies from this State, to meet 
such deputies as may be appointed and authorized by 
other States, to assemble in Convention at Philadelphia, 
and to join with them in devising and discussing all such 
alterations and furtlier provisions as may be necessary 
to render the Federal Constitution adequate to the exi- 
gencies of the Union, and in reporting such an Act for 
that purpose to the United States in Congress assembled, 
as, when agreed to by them, and duly confirmed by the 
several States, will efiectually provide for the same. In 

* MlioVs Debates, vol. i, pp. 12G-138. 



Col. III.] RESPONSES OF THE STATES. 97 

case of the death of any of the said Deputies, or of their 
declining their appointments, the Executive is hereby 
authorized to supply such vacancies." 

By virtue of this ordinance, the Governor of the State 
issued commissions, or credentials, to the several Dele- 
gates thus appointed. I read one of these. The others 
are exactly similar to it. 

"The State of Georgia, by the grace of God, free, 
Sovereign, and Independent : 

" To the Hon. William Few, Esqr. : 

" ^V]iereas, you, the said William Few, are, in and by 
an Ordinance of Jie General Assembly of our said State, 
nominated and appointed a Deputy to represent the same 
in a Convention of the United States, to be assembled at 
Philadelphia, for the purposes of devising and discussing 
all such alterations and further provisions as may be 
necessary to render the Federal Constitution adequate to 
the exigencies of the Union — 

■You are, therefore, hereby commissioned to proceed 
on the duties required of you in virtue of the said 
ordinance. 

" Witness our trusty and well-beloved George Matthews, 
Esq., our Captain-General, Governor, Commander-in-chief, 
under his hand and our great seal, this 17th day of 
April, in the year of our Lord 1787, and of our Sove- 
reignty and Independence the eleventh." 

Signed by the Governor and countersigned by his 
Secretary. 

From this it clearly appears that Georgia responded to 
the call for a Convention of her Co-Sovereign States, 
with the sole view of discussing and making such altera- 
tions in their then Federal Constitution as might be 
deemed proper and necessary for the better providing Ibr 
the exigencies of " the Union." That is, the continued 



98 CONSTITUTIONAL YTEW OF THE WAR. [Tol. I. 

Union of Sovereign Confederated States. Nothing could 
have been further from the intention of Georgia, or the 
Congress, than a dissolution of that Union by a general 
merger of all the people of the United States in one 
Nation. The object was to preserve the Union as it 
existed, and not to destroy it. 

How utterly demolishing this record is to the reported 
statement of Mr. Pinckney, quoted by Judge Story, " that 
no one of the distinguished band of patriots of that day 
ever thought of the separate independence of the several 
States." The commission of Governor Mathews shows 
beyond cavil that at least one of those distinguished 
patriots, and at least one of those States, not only 
thought of such an idea, but acted upon it, as a known, 
fixed, and acknowledged fact. This fact was set forth 
in the credentials by which the Delegates from Georgia 
were received by their associates from all the other 
States. They were received into the Federal Convention, 
as Delegates from a State claimi7ig at least to be Free^ 
Sovereign, and Independent; and, being so received, all 
the other parties which so received them should be 
held to be forever estopped from denying the character 
of the powers or authority under which they were 
received and acted. This commission shows, too, that 
this claim of Sovereignty and Independence was from the 
date that her Delegates in Congress, in her name, and by 
her Paramount authority, had joined the Delegates from 
all the other States in proclaiming the great fact in 
their general Declaration on the ever memorable 4th 
of July, 1776. 

"The 17th of April," says Governor Mathews, "in the 
year of our Lord, 1787, and o^ our Sovereignty and Inde- 
pendence the eleventh." 

The responses of all the States which did respond (and 



Col. IIT.l RESFOXSES OF THE STATES. 99 

all did respond except Rhode Island), are no less signifi- 
cant than that of Georgia. It is quite a labor to go 
througli with them all, but the important bearing they 
have upon the great questions we are now considering, 
requires not only that we should look into them, but 
examine them thoroughly, and scan them closely. These 
establish very essential facts, to which we should look in 
our inquiry. They are the deep footprints of truth, im- 
pressed upon our earlier history, which assertion can 
never obliterate, argument cannot remove, sophistry can- 
not obscure, time cannot erase, and which even wars can 
never destroy! However upheaved the foundations of 
society may be by political convulsions, these will stick 
to the Yery fragments of the rocks of our primitive for- 
mation, bearing their unerring testimony to the ages to 
come ! 

The responses of all the States show conclusively the 
great indisputable fact that they all, at that time, claimed 
to be Sovereign and Independent, and that their sole 
object in going into Convention at that time was barely 
to provide for such changes as could be made in their 
then Constitution, as experience had shown to be proper, 
and not to change its Federal character. Let us examine 
each of them closely. 

SECOND, MASSACHUSETTS.* 

The response of your State, Judge, appears from the 
following commission to her Delegates : 

" By his excellency, James Bowdoin, Esq., Governor 
of the Commonwealth of Massachusetts. 

" To the Hon. Francis Dana, Elbridge Gerry, Nathaniel 
Gorham, Rufus King, and Caleb Strong, Esqs,, greeting • 

^ For all Llicse respousL's, sec ElliuVs DibaUi>^ vol. i, [)[). 12G-138. 



100 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

'' Wliereas, Congress did, on the 21st day of February, 
A. D., 1787, Resolve, ' That, in the opinion of Congress, it 
is expedient that, on the second Monday in May next, a 
Convention of Delegates, who shall have been appointed 
by the several States, be held at Philadelphia, for the 
ftole and express jmrpose of revising the Articles of Con- 
federation, and reporting to Congress and the several Legis- 
latures such alterations and provisions therein as shall, 
wlien agreed to in Congress, and confirmed by the States, 
render the Federal Constitution adequate to the exigen- 
cies of government and the preservation of the Union :' 

'•^And icliereas, the General Court have constituted and 
appointed you their Delegates, to attend and represent 
this Commonwealth in the said proposed Convention, and 
have, by a resolution of theirs of the 10th of March last, 
requested me to commission you for that purpose : 

" Now, therefore, know ye. That, in pursuance of the 
resolutions aforesaid, I do, by these presents, commission 
you, the said Francis Dana, Elbridge Gerry, Nathaniel 
Gorham, Rufus King, and Caleb Strong, Esqrs., or any 
three of you, to meet such Delegates as may be appointed 
by the other, or any of tlie other States in tlie Union, to 
meet in Convention at Philadelphia, at the time and for 
the purposes aforesaid. 

" In testimony whereof, I have caused the public seal 
of the Commonwealth aforesaid to be hereunto afiixed. 

" Given at the Council Chamber, in Boston, the ninth 
day of April, A. d., 1787, and in the eleventh year of the 
Independence of the United States of America." 

THIRD, CONNECTICUT. 

The response of your State, Professor, is seen in the 
following act of its General Assembly of the second 
Thursday of May, 1787 : 



Col. III.] RESrONSES OP THE STATES. 101 

"All Act for appointing Delegates to meet in Conven- 
tion of the States to be held at Philadelphia, on the sec- 
ond Monday of May instant. 

" Whereas, the Congress of the United States, by their 
Act of the 21st February, 1787, have recommended that, 
on the second ^londay of May instant, a Convention of 
Delegates, who shall have been appointed by the several 
States, be held at Philadelphia, for the sole and express 
purpose of re^dsing the Articles of Cofifederation : 

" Be it enacted by the Governor, Council, and Repre- 
sentatives, in General Court assembled, and by the au- 
thority of the same. That the Hon. WiUiam Samuel 
Johnson, Roger Sherman, and Oliver Ellsworth, Esqrs., 
be, and they hereby are, appointed Delegates to attend 
the said Convention, and are requested to proceed to the 
City of Philadelphia, for that purpose, without delay; 
and the said Delegates, and, in case of sickness or acci 
dent, such one or more of them as shall attend the said 
Convention, is, and are hereby authorized and empow- 
ered to represent this State therein, and to confer with 
such Delegates appointed by the several States, for the 
purposes mentioned in the said Act of Congress, that may 
be present and duly empowered to sit in said Convention, 
and to discuss upon such alterations and provisions, 
agreeably to the general principles of Republican Govern- 
ment, as they shall think proper to render the Federal 
Constitution adequate to the exigencies of government 
and the preservation of the Union ; and they are further 
directed, pursuant to the said Act of Congress, to report 
such alterations and provisions as may be agreed to by a 
majority of the United States represented in Convention, 
to the Congress of the United States, and to the General 
Assembly of this State." 



102 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I, 

FOURTn, NEW TORY. 

The State of New York, by a joint resolution of her 
TjegisLature, passed the 6th of March, 1787, responded as 
follows : 

'■^Resolved, That the Hon. Robert Yates, John Lan- 
sing, Jr., and Alexander Hamilton, Esqs., be, and they 
are here])> declared duly nominated and appointed Dele- 
gates, on the part of this State, to meet such Dele.iicates as 
may be appointed on the part of the other States, respec- 
tively, on the second Monday in May next, at Philadel- 
phia, for the sole and express jmrpose of re\dsing the Arti- 
cles of Confederation, and reporting to Congress, and to 
the several Legislatures, such alterations and provisions 
therein as shall, when agreed to in Congress, and con- 
firmed by the several States, render the Federal Consti- 
tution adequate to the exigencies of government and the 
preservation of the Union." 

To these proceedings Governor Clinton, Governor of 
the State, officially certified in the following words : 

" In testimony whereof I ha\e cauacd the privy seal 
of the said State to be hereunto affixed this ninth day of 
May, in the eleventh year of the Independence of the 
said State." 

FIFTH, NEW JERSEY. 

The State of New Jersey responded as follows : 
" To the Hon. David Brearly, William Churchill Hous- 
ton, William Patterson, and John Neilson, Esqs., greeting : 
" The Council and Assembly, reposing especial trust 
and confidence in your integrity, prudence, and ability, 
hnve, at a joint meeting, appointed you, the said Davi'-" 
Brearly, William Churchill Houston, AYilliara Patterson^ 
and John Neilson, Esqs., or any three of you, Commis- 
sioners, to meet such Commissioners as have been, or may 



Col. tit.] RT'^rfPONSES OF THE STATES. 103 

be, appointed by the otiier States in the Union, at the 
City of Philadelphia, in the Connnonwealth of Pennsyl- 
vania, on the second Monday in May next, for the pur- 
pose of taking into consideration the state of the Union 
as to trade and other imjmrfant objects, and of devising 
such other provisions as shall appear to be necessary to 
render the Constitution of the Federal Government ade- 
quate to the exigencies thereof. 

" In testimony whereof, the great seal of the State is 
hereunto affixed. Witness, William Livingston, Esq., 
Governor, Captain-General, and Commander-in-chief, in 
and over the State of New Jersey, and territories thereunto 
belonging, Chancellor and Ordinary in the same, at Tren- 
ton, the 23d day of November, in the year of our Lord, 
1786, and of our Sovereignty and Independence the 
eleventh." 

SIXTH, PENNSYLVANIA. 

The State of Pennsylvania responded as follows : 
"An Act appointing Deputies to the Convention, in- 
tended to be held in the City of Philadelphia, for the 
Purpose of revising the Federal Constitution. 

"Sec. 1. Whereas, the General Assembly of this Com- 
monwealth, taking into their serious consideration, the 
representations heretofore made to the Legislatures of the 
several States in the Union, by the United States in Con- 
gress assemljlcd, and also weighing the difficulties under 
which the Confederated States now labor, are fully con- 
vinced of the necessity of revising the Federal Constitu- 
tion, for the purpose of making such alterations and 
amendments as the exigencies of our public affairs re- 
;juire: And, whereas, the Legislature of the State of 
Virginia have already passed an Act of that Common- 
wealth, empowering certain Commissioners to meet at 
the City of Philadelphia, in May next, a Convention of 



104 CONSTITUTIONAL VIEW OP THE WAE. [Vol. I. 

Commissioners or Deputies from the different States; and 
the Legishiture of this State are fully sensible of the 
important advantages which may be derived to tlie 
United States, and every of them, from co-operating with 
the Commonwealth of Virginia, and the other States to 
the Confederation, in the said design. 

"Sec. 2. Be it enacted, and it is hereby enacted, by 
the Representatives of the freemen of the Commonwealth 
of Pennsylvania, in General Assembly met, and by the 
authority of the same. That Thomas Miiilin, Robert 
Morris, George Clymer, Jared Ingersoll, Thomas JFitz- 
simmons, James Vv^ilson, and Gouverneur Morris, Esqrs., 
are hereby appointed Deputies from this State, to meet 
in the Convention of the Deputies of the respective 
States of North America, to be held at the City of Phila- 
delphia, on the 2d day in the month of May next; and 
the said Thomas Mifilin, Robert Morris, George Clymer, 
Jared Ingersoll, Thomas Fitzsimmons, James Wilson, 
and Gouverneur Morris, Esqrs., or any four of them, are 
hereby constituted and appointed Deputies from this 
State, with powers to meet such Deputies as may be 
appointed and authorized by the other States, to assendjle 
in the said Convention, at the city aforesaid, and join 
with them in devising, delibL'rating on, and discussing, 
all such alterations and furtJier 2)>'ovlsions as may be 
necessary to render the Federal Constitution fully ade- 
quate to the exigencies of the Union, and in reporting 
such act or acts, for that purpose, to the United States in 
Congress assembled, as, when agreed to by them, and 
duly confirmed by the several States, will elfccLually pro- 
vide for the same. 

"Sec. 3. And be it further enacted by the authorit}' 
aforesaid. That, in case any of the said Deputies hereby 
nominated shall hapjien to die, or to resign his or their 



Col. III.J RESPONSES OF THE STATES. 105 

eaid appointment or appointments, the supreme executive 
council shall be, and hereby are, empowered and required 
to nominate and appoint other person or persons, in lieu 
of him or them so deceased, or who has or have so re- 
signed, which person or persons, from and after such 
nomination and appointment, shall be, and hereby are, 
declared to be vested with tlie same powers respectively 
a.s any of the Deputies nominated and appointed by this 
Act is vested with by the same; provided always, that 
the council are not hereby authorized, nor shall they 
make any such nomination or appointment, except in 
vacation and daring the recess of the General Assembly 
of the State." 

This Act passed December 30th, 1786. By a supple- 
mental Act passed the 28th day of March, 1787, Dr. 
Franklin w^as appointed as an additional Delegate. 

SEVENTH, DELAWARE. 

The State of Delaware responded as follows: 

"His Excellency, Thomas CoUins, Esqr., President, 
Captain-General, and Commander-in-chief, of the Dela- 
ware State. 

" To all to wdiom these presents shall come. Greeting ; 
Know ye, that, among the laws of the said State, passed 
by the General Assemby of the same, on the 3d day of 
February, in the year of our Lord, 1787, it is thus en- 
rolled : — In the eleventh year of the Independence of the 
Delaware State. 

" An Act appointing Deputies from this State to the 
Convention proposed to be held in the City of Philadel- 
phia, for the Purpose of revising the Federal Constitution. 

" Whereas, the General Assembly of this State are 
fully convinced of the necessity of revising the Federal 
Coiistitution, and adding thereto such further provisions 



106 CONSTITUTIONAL VIEW OF THE WAR. [Vol.1 

as nieay render the same more adequate to the exigencies 
of the Union; and, whereas, the Legislature of Virginia 
have ah-eady passed an Act of that Commonwealtli, 
appointing and authorizing certain Commissioners to 
meet, at the City of PhiLadelphia, in May next, a Coii- 
ventiou of Commissioners or Deputies from the different 
States; and this State being willing and desirious of co- 
operating with the Commonwealth of Virginia, and the 
other States in the Confederation, in so useful a design : — 
" Be it, therefore, enacted by the General Assembly of 
Delaware, that George Read, Gunning Bedford, John 
Dickinson, Richard Basset, and Jacob Broom, Esqrs., are 
hereby appointed Deputies from this State, to meet in the 
Convention of the Deputies of other States, to be held at 
the City of Philadelphia, on the 2d day of May next; and 
the said George Read, Gunning Bedford, John Dickinson, 
Richard Basset, and Jacob Broom, Esqrs., or any three of 
them, are hereby constituted and appointed Deputies from 
this State, with powers to meet such Deputies as may be 
appointed and authorized by the other States to assemble 
in the said Convention at the city aforesaid, and to join 
with them in devising, dehberating on, and discussing, 
such alterations and further 2)rovkio)is as may be neces- 
sary to render the Federal Constitution adequate to the 
exigencies of the Union ; and in reporting such Act or 
Acts, for that purpose, to the United States in Congress 
assembled, as, when agreed to by them, and duly confirmed 
by the several States, may effectually provide for the same. 
So always and provided, that such alterations or further 
provisions, or an}^ of them, do not extend to that part of 
the bill Article of the Confederation of the said State, finally 
ratified on the 1st day of March, in the year 1781, which 
declares that, '■In determining questions in the United 
States in Congress assembled, each State shall have one 



Col. III.] RESrONSES OF THE STATES. 107 

vote.' And be it enacted, That in case an}' of the .^aid 
Deputies hereby nominated shall happen to die. or reaisiii 
liis or their appointment, the President or Commanat-r- 
in-chief, with the advice of the privy council, m tne 
recess of the General Assembly, is hereby autiionzea to 
supply such vacancies. 

" In testimony whereof, I have hereunto subscril^ed 
my name, and caused the great seal of the said State to 
be affixed to these presents, at New Castle, the 2d day 
of April, in the year of our Lord, 1787, and in the 11th 
year of the Independence of the United States of 
America." 

EIGHTH, MARYLAND. 

The State of Maryland responded as follows : 
"An Act for the Appointment of, and conferring 
Powers on. Deputies from this State to the Federal Con- 
vention. 

" Be it enacted by the General Assembly of Maryland, 
That the Hon. James McIIenry, Daniel of St. Thomas 
Jenifer, Daniel Carroll, John Francis Mercer, and Luther 
Martin, Esqrs., be appointed and authorized, on j^ehalf of 
this Stat-e, to meet such Deputies as may be appointed 
and authorized, by any other of the United States, to 
assemble in Convention at Pliiladelphia, for the purpose 
of revising tlie Federal system, and to join with them in 
considering such alterations and further provisions as may 
be necessary to render the Federal Constitution adequate 
to the exigencies of the Union; and in reporting such an 
Act for that purpose, to the United States in Congress 
asssembled, as, when agreed to by them, and duly con 
firmed by the several States, will effectually provide foi 
the same; and the said Deputies, or such of them as shall 
attend the said Convention, shall have full power to rep- 
resent this State for the purposes aforesaid; and the said 



108 CONSTITUTIONAL YIEW OF THE WAR. [Vol. I. 

Deputies are hereby directed to report the proceedings of 
the said Convention, and any Act agreed to therein, to 
the next Session of the General Assembly of this State." 

NINTH, VIRGINIA. 

The State of Virginia responded as follows : 
"An Act for appointing Deputies from this Common- 
wealth to a Convention proposed to be held in the City 
of Philadelphia, in May next, for the purpose of re- 
vising the Federal Constitution. 

" WherecLs, the Commissioners who assembled at An- 
napolis, on the 14th day of September last, for the 
purpose of devising and reporting the means of en- 
abling Congress to provide effectively for the Com- 
mercial interests of the United States, have represented 
the necessity of' extending the revision of the Federal 
system to all its defects, and have recommended that 
Deputies, for that purpose, be appointed by the several 
Legislatures, to meet in Convention, in the City of 
Philadelphia, on the 2d day of May next, — a provision 
which was preferable to a discussion of the subject in 
Congress, where it might be too much interrupted by 
the ordinary business before them, and where it would, 
besides, be deprived of the valuable counsels of sundry 
individuals who are disqualified by the Constitution 
or laws of particular States, or restrained by peculiar 
circumstances from a seat in that Assembly : and 
whereas the General Assembly of this Commonwealth, 
taking into view the actual situation of the Confederacy, 
as well as reflecting on the alarming representations 
made, from time to time, by the United States in 
Congress, particularly in their Act of the 15th day of 
February last, can no longer doubt that the crisis is 
arrived at which the good people of America are to de- 



Col. III.] RESPONSES OF THE STATES. loy 

cide the solemn question — wlietlior they will, hy ^vise 
and magnanimous efforts, reap the just fruits of that 
independence which they have so gloriously acqaire<l, 
and of that Union which they have cemented with so 
much of their common blood — or whether, by giving 
way to unmanly jealousies and prejudices, or to pai'tial 
and transitory interests, they will renounce the auspi- 
cious blessings prepared for them by the Revolution, and 
furnish to its enemies an eventful triumph over those by 
wliose virtues and valor ii has been accomplished : And 
whereas the same noble and extended policy, and the 
same fraternal and affectionate sentiments, which ori- 
ginally determined the Citizens of this Commonwealth 
to unite with their brethren of the other States in esta- 
blishing a Federal Government, cannot but be felt with 
equal force now as motives to lay aside every inferior 
consideration, and to concur in such further concessions 
and provisions as may be necessary to secure the great 
objects for which that Government was instituted, and 
to render the Uiiited States as happy in peace as they 
have been glorious in war : — 

'' Be it, therefore, enacted by the General Assembly of 
the Commonwealth of Virginia, That Seven Commis- 
sioners be appointed, by joint ballot of both Houses ol 
Assembly, who, or any three of them, are hereby autho- 
rized, as Deputies from this Commonwealth, to meet 
such Deputies as may be appointed and authorized by 
other States, to assemble in Convention at Philadelphia, 
as above recommended, and to join with them in de- 
vising and discussing all such alterations and further 
provisions as may be necessary to render the Federal 
Constitution adequate to the exigencies of the Union ; 
ind in reporting such an Act, for that purpose, to the 
United States in Congress, as, when agreed to by them, 



no CONSTITUTIONAL VIEW OF THE WAR. [Vcl. I. 

and duly confirmed by the several Slates, will elTect- 
uaily provide for the same. 

"And be it further enacted, That, in case of the 
death of any of the said Deputies, or of their declining 
their appointments, the Executive is hereby authorized 
to supply such vacancies ; and the Governor is requested 
to transmit forthwith a copy of this Act to the United 
States 'in Congress, and to the Executives of each of the 
States in the Union." 

Under this Act, Deputies were appointed, as provided ; 
at the head of the list of whom was placed George 
Washington. 

TENTH, NORTH CAROLINA. 

The State of North Carolina responded, as appears 
from the following Commission to her Deputies given by 
the Governor : 

'^ To the Hon. Alexander Martin, Esq., greeting : 

" Whereas, our General Assembly, in their late ses- 
sion, holden at Fayetteville, by adjournment, in the 
month of January last, did, by joint ballot of the Senate 
and House of Commons, elect Richard Caswell, Alexander 
Martin, William Richardson Davie, Richard Dobbs 
Spaight, and Willie Jones, Esqrs., Deputies to attend a 
Convention of Delegates from the several United States 
of America, proposed to be held at the City of PhiLadel- 
phia, in May next, for the purpose of revising the Federal 
Constitution : 

" We do, tlierefore, by these presents, nominate, com- 
missionate, and appoint you, the said Alexander Martin, 
one of the Deputies for and in behalf, to meet with our 
other Deputies at Philadelphia on the 1st of May next, 
and with them, or any two of them, to confer with such 
Deputies as may have been, or shall be appointed by the 
other States, for the purpose aforesaid : To hold, exercise, 



Col. III.] RP:SP0NSES OF THE STATES. HI 

and enjoy the appointment aforesaid, with all po\ver>i, 
authorities, and emoluments, to the Siime belonging, or 
in any wise, appertaining, you conforming in every in- 
stance to the Act of our said Assembly, under which you 
are appointed. 

"Witness, Richard Caswell, Esq., our Governor, Cap- 
tain-General, and Commander-in-Chief, under his hand 
and our seal, at Kinstrm, the 24th day of February, in 
the eleventh year of our independence, A. D. 1787." 

Similar Commissions were given to each of the other 
Delegates appointed. 

ELEVENTH, SOUTH CAROLINA. 

The State of South Carolina responded as follows: 
" By his Excellenc}^, Thomas Pinckney, Esq., Gov- 
ernor and Commander-in-Chief, in and over the State 
aforesaid : 

'^ To the Hon. John Rutledge, Esq., greeting : 
"By virtue of the power and authority invested by 
the Legislature of this State, in their Act passed the 8tli 
day of March last, I do hereby commission you, the said 
John Rutledge, as one of the Deputies appointed from 
this State, to meet such Deputies or Commissioners as 
may be appointed and authorized by other of the United 
States to assemble in Convention, at the City of Phila- 
delphia, in the mouth of May next, or as soon thereafter 
as may be, and to join with such Deputies or Commis- 
sioners (they being duly authorized and empowered) in 
devising and discussing all such alterations, clauses, arti- 
cles, and provisions, as may be thought necessary to 
render the Federal Constitution entirely adequate to tlje 
actual situation and future good government of the Con- 
federated States ; and that you, together with the said 
Deputies or Conujiissioners, or a majority of them, who 



112 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

shall be present (provided the State be not represented 
by less than two), do join in reporting such an act to the 
United States, in Congress assembled, as, when approved 
and agreed to by them, and duly ratified and confirmed 
by the several States, will efiectually provide for the 
exigencies of the Union. 

" Given under my hand and the Great Seal of the 
State, in the City of Charleston, this 10th day of April, 
in the year of our Lord 1787, and of the Sovereignty and 
Independence of the United States of America, the 
eleventh." 

Signed by the Governor, and countersigned by the 
Secretary. 

TWELFTH, NEW nAMPSHIEE. 

The State of New Hampshire responded, in the lan- 
guage of the following Act of her Legislature : 

"An Act for appointing Deputies from this State to 
the Convention proposed to be liolden in the City of Piii- 
ladelphia in May, 1787, for the purpose of revising the 
Federal Constitution. 

" Whereas, in the formation of the Federal Comjmct, 
which frames the bond of union of the American States, 
it was not possible, in the infant state of our Republic, to 
devise a system which, in the course of time and experi- 
ence, would not manifest imperfections that it would be 
necessary to reform : 

"And whereas, the limited powers, which, by the Arti- 
cles of Confederation, are vested in the Congress of the 
United States, have been found far inadequate to the 
enlarged purposes which they w^ere intended to produce ; 
and whereas. Congress hath, by repeated and most urgent 
representations, endeavored to awaken this, and other 
States of the Union, to a sense of the truly critical and 
alarming situation in which they may inevitably be 



Col. III.] RESPONSES OF THE STATES. 113 

involved, unless timely measures be taken to enlarge the 
l^oioers of Congress, that they may thereby be enabled to 
avert the dangers which threaten our existence asajige 
and independent people ; and whereas, this State hath 
been ever desirous to act upon the liberal system of the 
general good of the United States, without circumscrib- 
ing its views to the narrow and selfish objects of partial 
convenience ; and has been at all times ready to make 
every concession, to the safety and happiness of the 
whole, which justice and sound policy could vindicate : 

" Be it therefore enacted, by the Senate and House of 
Representatives in General Court convened, that John 
Langdon, John Pickering, Nicholas Gilman, and Benjfir 
niin West, Esqs., be, and herel^y are, appointed Commis- 
sioners ; they, or any two of them, are hereby authorized 
and empowered, as Deputies from this State, to meet at 
Philadelphia said Convention, or any other place to which 
the Convention may be adjourned, for the purposes afore- 
said, there to confer with such Deputies as are, or may 
be, appointed by the other States for similar purposes, 
'and .with them to discuss and to procure and decide upon 
the most effectual means to remedy the defects of our 
Federal Union, and to procure and secure the enlarged 
purpose^ wdiich it was intended to effect, and to report 
such an Act to the United States in Congress, as, when 
agreed to by them, and duly confirmed by the several 
States, will effectually provide for the same." 

From all these responses of the States, to the call for a 
Convention of the States, it clearly appears that the 8oIe 
olDJect of all was to change and modify the Articles of 
Confederation, so as better to provide for the wants and 
exigencies of "the Union," which must have meant the 
Union then existing, and which we have seen was a Union 
of Sovereign States, The object w as not to change the 



114 CONSTITUTIONAL VIEW OP THE WAR. [Vol I. 

Federative character of that Union. This is an impor- 
tant point to be kept constantly in view, and never lost 
sight of. The Convention was called with this sole view, 
and the call was responded to by every State with this 
sole view. 

Under the call and appointment of Delegates, as we 
have seen, the Convention did meet in Philadelphia, on 
the second Monday in May (14th of that month), 1787. 
Washington, a Deputy or Delegate from the State of Vir- 
ginia, was chosen the President of the Convention. The 
Convention remained in session until the 17tli of Sep- 
tember thereafter — four months and three days.* It was 
assembled as a Convention of the States. The Dele- 
gates represented distinct, separate, and acknowledged 
Sovereign powers. The vote upon all questions was 
t^aken by States, without respect to the numJDer of Dele- 
gates from the several States respectively. Here is the 
Journal of their proceedings from the day of their meet- 
ing to their adjournment.* The result of their delibera- 
tions and actions was such changes in the Federal Con- 
stitution as were set forth in the paper which they pre- 
sented to the States. This paper is what has ever since 
been, known as the present Constitution of the United 
States. Now the great question that we have to con- 
sider is the nature and character of the alterations in the 
old fundamental law, or Constitution, the Articles of 
Confederation, which the new Constitution made. Is 
the Federative feature of "the Union" changed in it? 
This is the great question. If the Union, as it existed 
before, was a Compact between Sovereign States, as has 
been most conclusively shown, is there any thing upon 
the face of the proceedings of the Convention, or upon 
the face of the new Constitution, which shows, either 



* IPlioVs Debates, vol. i, pp. 139-318. 



Col. III.] A LITTLE RELAXATION. 115 

oxpressly or by implication, that any change of the char- 
act«>r of the Union in this respect was either intended, 
contemplated, or, in fjict, effected? Was there any 
change as to where ultimate Sovereignty and Paramount 
authority under our Institutions then rested or resided? 
Before the meeting of this Convention these were un- 
questionably acknowledged to dwell with the people of 
the States severally. Was any change in this particular 
effected by the new Constitution ? 

Prof. Norton. Do you wish an answer to your ques- 
tion no^\'^? 

Mr. Stephljs'S. Yes. It is best to have all points 
settled as we go. 

Prof. Norton. Then, for myself, I Avill say, that, as I 
understand it, there was a thorough and radical change 
effected in the new Constitution in the very particular 
you refer to, and such change as utterly overthrows the 
whole theory which I clearly perceive it is your object to 
endeavor to establish, by the conclusions you are success- 
ively reaching. But what say you to adjourning for the 
present and resuming the subjecc hereafter? 

Mr. Stephens. Certainh A little relaxation will be 
quite agreeable to me. This, recollect, is Liberty Hall. 
Tiie rules of the establishment are that all its inmates 
do just as they please. It is now about the usual time 
for me to take my accustomed evening walk. You, gen 
tiemen, can all remain here and entertain yourselves 
^vith Ijooks, or in any other way you prefer, or join me in 
.1 stroll, just as your several inclinations lead. 

Judge Bynum. We have had enough of books for the 
] resent. I am for the walk. 

Prof. Norton. So am I. 

Major IIeister. Well, I certainly have no disposition 
either to secede or to be seceded from. It is against my 
rinciples. ' So we will ail join you in the w\alk. 



COLLOQUY IV. 

THE NATURE OF THE UNION NOT CHANGED UNDER THE CONSTITUTION — 
ULTIMATE SOVEREIGNTY UNDER IT RESIDES WHERE IT DID UNDER THE 
CONFEDERATION — JUDGE STORY ON THE FIRST RESOLUTION OP THE 
FEDERAL CONVENTION — THE CONSTITUTION, AS THE CONFEDERATION, 19 
A GOVERNMENT OF STATES AND FOR STATES — THIS APPEARS FROM THE 
PREAMBLE IT8ELF — THE UNION OF THE STATES WAS CONSOLIDATED BY 
THE CONSTITUTION, AND NOT ABROGATED AS IT WOULD HAVE BEEN BY 
A GENERAL MERGER OP THE STATE SOVEREIGNTIES — IT FORMS A CON- 
FEDERATED REPUBLIC — SUCH A REPUBLIC IS FORMED BY THE UNION OP 
SEA^ERAL SMALLER REPUBLICS EACH RESPECTIVELY PUTTING LIMITED 
RESTRAINTS UPON THEMSELVES BY VOLUNTARY ENGAGEMENTS WITHOUT 
ANY IMPAIRMENT OF THEIR SEVERAL SOVEREIGNTIES, ACCORDING TO 
MONTESQUIEU AND VATTEL. 

Mr. Stepeens. Well, Professor, I believe we are all 
ready for your views upon the subjects discussed in our 
last talk upon the nature of the Government of the 
United States. I hope you are in good condition after a 
night's rest. You had something to say in answer to 
my last question, when Ave adjourned yesterday evening. 

Prof. Norton. Yes. You asked if there was any 
change of Sovereignty efiected by the Constitution, or, 
in other words, as I understood your question, whether 
the States, severally, did not retain their ultimate absolute 
Sovereignty under the Constitution, as fully and com- 
pletely, as they did under the Articles of Confederation? 

Mr. Stephens. Certainly, that was the purport of my 
question. 

Prof. Norton. To this I replied, that I thought there 
was a change, and a radical change, in this respect, in 

(116) 



Col. IV.] HISTORY OF THE UNI02^ TEACED. 117 

the New Constitution from the Old, as you call it. In 
presenting my views on this point I, too, will premise so 
far as to say, that I never did agree with Judge Story in 
his historical account of the Declaration of Independence, 
o'-.d his argument founded thereon, that the people of the 
United States became one nation at that time, or during 
their Colonial existence. I have always agreed with 
Mr. Curtis and Mr. Motley, that the Declaration of Inde- 
pendence was made by the Colonies jointly, but for the 
independence of each separately. That they were so 
acknowledged to be separate Independent Sovereign States 
by Great Britain, in the Treaty of Peace, and that the 
first Union formed by the States, during their common 
struggle for that separate independence, was a Confeder- 
ation between distinct separate Sovereign Powers. Fur- 
ther, that that Union was a Confederation of States. 
It was a bare League, founded upon Compact between 
distinct Powers, acknowledging each other to be Sovereign 
in all respects whatsoever; and I also hold it to be true, 
that the Convention of 1787 was called with the sole 
view of revising those articles of Union between the 
States for the purpose of making it -a firm National Gov- 
ernment between them as States for all external j:\ur- 
poses, without changing the Federative basis of the 
Union. I do not question the material facts of our his- 
tory as far as you have gone ; nor can it be questioned 
that the States, in responding to this call for the Conven- 
tion, understood it in that light. This, their respective 
responses, you have collated and read, conclusively show. 
But my position is, that after the Convention met, upon 
a conference and a free interchange of views with them- 
selves, they found the defects in the old system to be so 
lumierous and thorough (extending not only to the want 
of power in Congress to regulate trade, and the powei 



118 CONSTITUTIONAL VIEW OF THE WAR. [^ol. I. 

to pass laws to operate directly on the people of the 
States in the collection of revenue, without resorting to 
requisitions on the States in their corporate or political 
capacities, hut running through the whole system), that 
it was necessary, in order to do any thing efficiently, to 
abandon their instructions entirely, and with them, to 
abandon all idea of remodelling the Confederation. With 
these views and under these convictions, as I understand 
it, they determined to form and present to the whole 
American people a plan of government for them as one 
people or Nation, based upon the principle of a social 
Compact, and not upon any idea of a Compact between 
States, as the Articles of Confederation were, at that 
time, universally acknowledged to be. In other words, 
the Convention, as I maintain, came to the conclusion 
that the only cure or remedy for the innumerable defects 
and evils of the Articles of Confederation was a total 
aljandonment of them, and all ideas of any government 
founded upon Compact between States, and to substitute 
in lieu of it a government of the whole people of all 
the States as one Nation. 

My views on this, subject are very well expressed by 
Mr. Motley, in that part of his article which you have 
referred to, but did not read. Here it is : — 

•' But there were patriotic and sagacious men in those 
days, and their efforts at last rescued us from the condi- 
tion of a Confederacy. The Constitution of the United 
States was an organic law, enacted by the Sovereign 
people of that whole territory, which is commonly called, 
in geographies and histories, the United States of 
America. It was empowered to act directly, by its ov\-ii 
Legislative, Judicial, and Executive machinery, upon every 
individual in the countr3\ It could seize his property, 
It could take his life, for causes of which itself was the 



Col. IV.] MOTLEY AND STORY AGAIN. 119 

Judge. The States were distinctly prohibited from op [los- 
ing its decree or from exercising any of the great functions 
of Sovereignty. The Union alone was supreme, any 
thimx in the Constitution and laws of the State to the 
contrary notwithstanding. Of what significance, then, 
was the title of ' Sovereign' States, arrogated, in later 
days, by communities which had voluntarily abdicated 
the most vital attributes of Sovereignty ? * ''' * 

" It was not a Compact. Whoever heard of a Compact 
to which there were no parties ? or, whoever heard of a 
Compa(3t made by a single party with himself? Yet the 
name of no State is mentioned in the whole document ; 
the States themselves are only mentioned to receive 
commands or prohibitions, and the ' people of the United 
States' is the single paiiy by whom alone the instrument 
is executed. 

"The Constitution was not drawn up by the States, it 
was not promulgated in the name of the States, it w\ns 
not ratified by the States. The States never acceded 
to it, and possess no power to secede from it. It 
was 'ordained and established' over the States by a 
power superior to the States — by the people of the whole 
land, in their aggregate capacity, acting through Conven- 
tions of Delegates, expressly chosen for the purpose 
within each State, independently of the State Govern- 
ments, after the project had been framed." 

Tliis position of Mr. Motley, in the main, accords 
with my own, and it perfectly accords with another state- 
ment of Judge Story, with which I do fully agree, also ; 
and that is when he says : " In the Convention that 
formed the Constitution of the United States, the first 
Resolution adopted by that body was ' that a National 
Government ought to be established, consisting of a 
Supreme, Legislative, Judiciary, and Executive.' And 



120 CONSTITUTIONAL VIEW OF TB^. WAR. [Vol. I 

from this fundamental proposition sprung the subsequent 
organization of the whole Government of the United 
States." " It is then our duty (says Judge Story) to 
examine and consider the grounds on which this propo- 
sition rests, since it lies at the bottom of all our Institu- 
tions, State as well as National." I read from vol. ii, 
Book iii, ch. vii, § 518. I will not ask you to reply to 
me specially, but what reply have you to make to these 
positions of Mr. Motley and Judge Story. What say 
you to Judge Story's argument on this view of the 
subject ? 

Mr. Stephens. In the first place I say, I am no less 
amazed at the statement of Judge Story, in the extract 
you have just read, than I was at the statement in the 
extract read by Judge Bynum from him before. It is, 
indeed, wonderful to me how Judge Story could have 
said, that from the first resolution passed by the Conven- 
tion, wdiich he quotes correctly, and which he speaks of 
as a fundamental proposition, the subsequent organiza- 
tion of the whole Government of the United States 
sprung. I shall shov/ you, most conclusively, that this 
statement, and the whole argument iDuilt upon it, by him 
or others, have just as little ground to stand upon as his 
otiier statement and argument had, by your own admis- 
sion. He says it is our duty to examine and consider 
the grounds on which this (his fundamental proposition) 
rests. Let us then so examine and so consider it, since 
in his judgment and yours it seems it lies at the bottom 
of all our Institutions, State as well as National. It cer- 
tainly does lie at the bottom of his as well as your whole 
argument attempting to show that the Constitution of 
the United States established a National and not a Fede- 
ral Government, and that it is not a Compact between 
Sovereign States. 



Cob. TV.] STORY'S FUNDAMENTAL PROPOSITION. 121 

Now, what grounds has this argument or consideration 
of the subject to rest upon? These and these only : The 
first Resolution passed by the Convention was as Judge 
Story states it, but it was not the first acted upon. It 
was the last of a series of three. The Convention was in 
committee of the whole, having under consideration n. 
plan of Government, submitted by Governor Randolph, 
of Virginia. The series of Resolutions, of which the one 
alluded to by Judge Story is the last, was offered by 
Gouverneur Morris, of Pennsylvania, to be substituted in 
lieu of the first Resolution in the plan offered by Gover- 
nor Randolph. Here are these Resolutions constituting 
this series:* 

"1. Resolved, That a Union of the States, merely 
Federal, will not accomplish the objects proposed by the 
xirticles of Confederation, namely, common defence, 
security of liberty, and general welfare. 

" 2. Resolved, That no treaty or treaties among any of 
the States, as Sovereign, will accomplish or secure their 
common defence, liberty, or welfare. 

" 3. Resolved, That a National Government ought to 
be established, consisting of a supreme Judicial, Legislar 
tive, and Executive." 

The first two of these resolutions were not agreed to. 
It was said, that if the first of this series of resolutions 
was agreed to, the business of the Convention was at an 
end. The first two, therefore, were dropped. The last 
was taken up and adopted — but how adopted or in what 
sense, very clearly appears from Mr. Yates's account of 
it.f " This last Resolve," he says, " had also its difficul- 
ties; the term supreme required explanation. It was 
<isked, whether it was intended to annihilate State Govern- 



* EIUoVs Debates, voi. i, p. 391. Madison Papers vol. ii, p. "47, 
t EllioVs Bibates, vol. i, p. 392. 



122 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

ments ? It was answered, only so far, as the powers in- 
tended to be granted to the new Government, should 
clash with the States, when the latter were to yield." 

The resolution, with this explanation and understand- 
ing, then passed in Committee, eight States only being 
present. But the refusal of the Committee to agree to 
the other two, or, rather, their abandonment without a 
division, shows very clearly, to all fair and right-think- 
ing minds, that it was not the intention of the Conven- 
tion, by the adoption of this third resolution in Commit- 
tee, to abandon the Federal sj'Stem, and institute a 
National Government, as Judge Story argues ; and that 
the Convention did not intend or indicate any purpose, 
thereby, to travel out of, or beyond their powers, which 
confined them, in the main, to the sole purpose of revis- 
ing and amending the terms of their Union, on the basis 
of a Confederationof Sovereign States. Now, when these 
lirst two resolutions, which contained the gist of the whole 
question, had been abandoned without a count, it is easy 
to conceive that any one might have supposed that the 
object of this resolution, after the explanation given, was 
barely to declare that such changes in the Articles of 
Confederation were intended by it, as Mr. Jefferson had 
foreshadowed — that is, that, in the changes to be made, 
there should be a division, in the powers delegated, into 
Legislative, Judicial and Executive, without any de- 
parture from the Federal basis of the Union. This is, 
also, strengthened by the fact that Delaware voted for 
tlie resolution. It is well known that that State never 
would have voted for the resolution, with the construction 
put upou its words wdiich Judge Story puts upon them. 
The introduction of the word National may not have 
struck the minds of the Delegates from Delaware and 
others, as bearing, or being intended to bear, the import 



Col. IV.] STORY'S FUNDAMENTAL PROPOSITION. 123 

now sought to be 2;iven to it, or which, upon close scru- 
tiny, legitimately belongs to it. National was a word 
often loosely used in application to the Government 
under the Confederation, and even by the strictest 
adherents to the Sovereignty of the States. In the letter 
i-ead yesterday from Mr. Jefferson, he spoke of the Gov- 
ernment being so modelled as to make us one Nation 
as to all foreign powers, and yet separate and distinct 
Nations, as to ourselves. This Unity, or Nationality, as 
to foreign powers, was to be founded upon a Federal 
basis or Compact between the internal Nationalities. It 
is no strain of presumption, therefore, to suppose that 
tliis word was understood in this sense by many who 
voted for that resolution. 

But the great controlling fiict in the case, one that 
removes every particle of ground upon which Judge 
Story builds his entire theory of the Government, is, 
that subsequently, on the 20th of June, when the report 
of the Committee of the Whole was before the Conven- 
tion, for consideration ; after the whole plan, suUmitted 
liy Governor Randolph, had been gone through with ; 
after the ideas and objects of the members, generally, 
had been developed ; and after the bearing of this word 
National, or the sense in which some used it, had been 
fully disclosed, and when eleven States were present, it 
was moved, by Mr. Ellsworth, of Connecticut, to strike 
out this resolution, that bad been previously agreed to, 
as before stated, and to insert the following : — 

" Besolvedy That the Government of the United States 
ought to consist of a Supreme Legislative, Judiciary and 
Executive."--'' 

This resolution was agreed to; and, after this action 

*EllioVs Debates, vol. i, p. 183. 



t24 CONSTITUTIONAL VIEW OF THE WAR. [You I. 

of the Convention upon this resolution, the word " Na- 
tional," wherever it occurred, throughout Governor Ran- 
dolph's whole plan, was stricken out, and the " Govern- 
ment of the United States," or its equivalent, inserted. 
So, the '^'^fundamental iwoposltion," upon which Judge 
Story built his whole superstructure, is completely 
knocked from under him. The grounds, upon which it 
temporarily rested for the short space of twenty-one 
days, were completely removed by the Convention 
itself. The truth is, the debates between the 30th of 
May and the 20th of June, had disclosed the fact that 
there were quite a number of Delegates in the Conven- 
tion, who were in favor of doing what Judge Story would 
make the impression, or seems really to think, that they 
had done. They were, as clearly appears from Gouver- 
neur Morris's first resolution, for doing away with the 
Federal system entirely, and for establishing one great 
National Government; or, in other words, they were for 
abandonino; the whole idea of a Federal Union, and in- 
corporating the several State Sovereignties into one 
National Sovereignty. 

Among these, none were more prominent or zealous 
than Governor Randol])h and Mr. Madison, of Virginia, 
Mr. Morris and Mr. Wilson, of Pennsylvania, Mr. King, 
of Massachusetts, and Mr. Hamilton, of New York. 
These differed widely amongst themselves, as to the 
form of Government which should be instituted upon 
this National basis. Governor Randolph and Mr. Wilson 
seemed to have been for a Consolidated Democratic Re- 
public, with two Houses for Legislation, and an Elective 
Executive. In this view, Mr. Madison concurred. Mr. 
Hamilton and Mr. Morris were also for one single Na- 
tional Republic, but based upon different principles. 
Some thought their scheme looked toward Monarchy, 



Col. IV.] STORY'S FUNDAMENTAL PROPOSITION. 125 

but justice requires it to be stated, that nothing that fell 
from them, or either of them, in the debates, authorizes 
such a conclusion. They were all, however, — Randolph, 
Madison, Morris, Hamilton, Wilson and King — for a 
great National Republic, with a total departure from the 
Federal system. While the Nationals in the Convention 
were so divided, an overwhelming majority of the Dele- 
gates, as well as a majority of the States, were utterly 
opposed to either of their systems. Nothing could induce 
them to depart from the Federal system, or cause them 
to yield the equality of the States, as Sovereigns, in the 
Union, and the equality of their votes in* all measures 
that might be passed upon by the new Government, ns 
it was in the old. It was after this disclosure that the 
States agreed to the resolution of Mr. Ellsworth, to 
strike out '' National Government," wherever it occurred 
in Governor Randolph's plan, and substitute for it, '' Gov- 
ernment of the United States." It w\as thus settled by 
the Convention, in their final action upon this very first 
resolution, that the work of their hands, whatever might 
be itg details, was to be a plan, or organization, or Con- 
stitution, or Articles of Compact, call you it what you 
may, of a Government of States, of Sovereign States, 
formed and instituted by States and for States. 

Judge Btnum. You do not mean to say that the 
Government of the United States, under the Constitu- 
tion as it was adopted, is nothing but a Government of 
States and for States ? 

Mr. Stephens. I mean to say that it is a Government 
instituted hy States and for States, and that all the 
functions it possesses, even in its direct action on the 
individual citizens of the several States, spring from 
and depend upon a Compact between the States con- 
stituting it. It is, therefore, a Government of States 



126 CONSTITUTIONAL VIEW OF THE WAR. [Vol, I. 

and for States. The final action upon the very first 
resolution, as we have seen, shows that the object of the 
Convention was to form a Government of States. " The 
Government of the United States" ought to consist, 
they declared, " of a Supreme Legislature, Judiciary 
and Executive." This is the same as if they had de- 
clared " the Government of the States United, ought 
to consist," etc. The first Constitution, we have seen, 
was a Government of States. The States in Congress 
assembled passed all laws, made all treaties, and exer- 
cised all powers vested in them jointly. No measure 
could be passed without the equal voice of each State, 
however small. Delaware had the same influence as 
New York, Massachusetts, or Virginia, and in this re- 
spect I maintain there is no essential change in the oieio 
Constitution. Examine it ! Sift it, and dissect it as you 
may, and you will find it to be nothing but a Govern- 
ment of States, as much so, in principle, as the old Con- 
federation. The powers to be exercised by the States 
jointly. Legislatively, Judicially, and Executively, have 
been enlarged, and it does not require so many States 
now to determine many questions as before ; but under 
the present Constitution no measure can be passed, no 
law can be enacted, if a majority of the States oppose 
it. 

Judge Bynum. Why, Mr. Stephens, that is a most 
extraordinary position. 

Mr. Stephens. Extraordinary ! My dear sir, is it not 
undeniably true? Has not each State an equal vote 
in the Senate ? Can any law be passed if a majority 
of the States in the Senate withhold their sanction ? 
The Senators, two to each State, are selected by the 
States, severally, in their corporate and Sovereign capa- 
"iity. Can any treaty be made, if any more than a bare 



Col. lY.l THIS iS A GOVERNMENT OF STATES. 127 

third of the States in the Seiicate refuse to iigive to it ? 
Can any man be appointed to any office of dignity or 
profit, if a majority of the States in the Senate vote 
against it? If the Electoral Colleges fail to choose a 
President, does not the election devolve npon the House 
of Representatives, where the election is by States, each 
State casting one vote only ? If they fail to elect a Vice 
President does not the election devolve on the Senate, 
where no one can be chosen if a majority of the States 
vote against him ? Can the Government be worked at 
all if a majority of the States in the Senate refuse their 
co-operation ? If a majority of the States were to refuse 
to elect Senators would not the Government, of necessity, 
cease to exist? The Supreme Court of the United ^ 
States has so held. Chief Justice Marshall, delivering 
the opinion, in the case of Cohens vs. Vi-jinla, uses this 
language :* 

" It is true, that if all the States, or a majority of 
them, refuse to elect Senators, the Legislative powers of 
the Union will be suspended !" 

Hamilton, in the Convention from New York, when 
the Constitution was before that body for approval or 
disapproval, in reply to arguments going to show that 
the State authorities would be endangered by the powers 
conferred on the General Government, declared ihat 
"the Union is dependent on the will of the State Go- 
vernments for its Chief Magistrate and for its Senate."-)* 
"The States," said Mr. Hamilton, "can never lose their 
powers till the whole people of America are robbed of 
their liberties." His great mind never gave utterance 
to a mightier truth ! 

Is it not entirely proper and correct, therefore, to say, of 

* Peters's Condensed Ecports, vol. v, p. 107. f EllioVs Debates, p. 353. 



128 CONSTITUTIONAL VIEW OF THE WAR. [Tol. 1. 

a Government that cannot be carried on rightfully at all 
against the will of a majority of the States, that it is a 
Government of States, and nothing but a Government 
of States ? 

Judge Bynum. That is certainly a strong way of 
putting it, but, then, under the Constitution of^ the 
[Tnited States, there is a House of Representatives 
elected by the people of the States according to popuhi- 
tion. The larger or more populous States, hav^e a great 
preponderance over the smaller or less populous ones, 
in that branch of the Congress ; and even in the Senate 
the vote is not taken by States ; it is taken per capita. 
Each Senator may vote as he pleases, and it often hap- 
pens that the two Senators from a State, vote differently' 
upon the same question; so that a law may pass without 
a majority of the States voting for it, and a treaty m y 
be ratified without a majority .of two thirds of the States 
voting for it. 
>- Mr. Stephens. That is also true, but it does not inter- 

fere in the least with what I have said, and maintain, 
that no law or measure can be passed if a majority of 
the States, through their Senators who represent their 
Sovereignty, vote against it. Under the system the 
power is with the States. If the Senators of a State be 
divided, the voice of that State is simply not heard on 
the question, exactly as it was under the Confederation, 
and in the Convention that formed the Constitution.''' 
It is in such case as if the State voluntarily absented 
herself from the vote, and let the other States decide it. 
In this there is no change in the new system from the 
lid. Under the Articles of Confederation, when the 
Delegation from a State was equally divided on any 

* Elliot's Debates, vol. v, p. 285. 



Col. IV.] THIS IS A GOVERNMENT OF STATES. 12y 

question, the vote of that State was not counted. It 
had no effect. The States, in forming the new Constitu- 
tion, did make one concession, and that was that a 
.txous3 of Representatives, to be elected by the people in 
the several States, in proportion to population, on a cer- 
tain basis, known ever as the Federal basis, might join 
in Legislation. But they never did yield their right to 
an equal vote in the Senate, or, that it might by possi- 
bility be without their power as States, to defeat any 
measure that the popular branch might adopt or pass. 
In this particular, relating only to the machinery and 
operation of the system, there is a change in the new 
Constitution from the old, but none in the principle. 
The equal voice of all the States, as States, on all ques- 
tions coming before the Congress of States, now as be- 
f )re, though divided into two Houses, is still retained in 
the Senate. The right and power of holding a complete 
and absolute veto in the hands of a majorit^^ of the 
States, over the House, or the popular branch of the 
Congress, was, and is, retained in the States. This was 
the great point on which the Convention, that framed 
the Constitution, came near breaking up without agree- 
ing to any thing. The Nationals, as they were called, 
insisted upon changing the principle of an equality of 
votes, on the part of the States, in the Senate. The 
Federals were willing to yield a change, as to the votes in 
the House, but would never yield their right to an equal 
voice in one, or the other of the branches of the Con- 
gress. They were determined to maintain an equality 
of political power in the States severally, in whatever 
form of Constitution might be adopted. It was at this 
stage of the proceedings that Dr. Franklin moved for 
prayers. On the first test vote on the motion to allow 
each State an equal vote in the Senate, the States stood 
9 



IIJO CONSTITUTIONAL VIEW OP THE WAR. [Vol. I, 

fivf for it, and five against it, with one divided.* Eleven 
States only were present. New Hampshire was absent. 
It was at this stage of the proceedings, that Mr. Bed- 
forl, from Delaware, declared 

" That all the States at present are equally Sovereign 
an^l Independent, has been asserted from every quarter 
in this House. Our deliberations here are a confirmar 
tion of the position, and I may add to it that each of 
them acts from interested, and many from ambitious 
motives. -^ * * The small States never can agree 
to the Virginia plan, and why, then, is it still urged? 
* '^ Let us then do what is in our power — amend 
and enlarge the Confederation, but not alter the Federal 
system." 

The Virginia plan was Governor Randolph's National 
plan. It was after this dead lock, at which the Conven- 
tion had come, between the Nationals and the State 
Sovereignty advocates, or Federals, as they were then 
called — between those who were in favor of what was 
called a National Government proper, and those in favor 
of the continued Union of the several States on a Federal 
basis — a Government National for external purposes, but 
leaving ultimate Sovereignty with the several States — 
after this speech of Mr. Bedford and like speeches of 
others — after it was seen that nothing could be done on 
the National line, that a Grand Committee was raised, 
consisting of one Member from each State, to see if any 
Compromise could be effected. The Committee consisted 
of Mr. Gerry, of Massachusetts, Mr. Ellsworth, of Con- 
necticut, Mr. Yates, of New York, Mr. Patterson, of New 
Jersey, Dr. Franklin, of Pennsylvania, Mr. Bedford, of 
Delaware, Mr. Martin, of Maryland, Mr. Davie, of North 

* EllioVs Debates, vol. i, p. 193. 



Col. IY.] THIS IS A GOVERNMF.NT OF STATES. ISl 

Carolina, Mr. Rutleclge, of South Carolina, and Mr. 
Baldwin, of Georgia. 

Mr. Yates has given an exceedingly interesting ac- 
count of the proceedings of this Grand Conimittee.* 
'' The Grand Committee," says he, *• met July 3d. Mr. 
Gerry was chosen Chairman. The Committee proceeded 
to consider in what manner they should discharge the 
business with which they were intrusted. By the pro- 
ceedings in the Convention, they were so equally divided 
on the important question of representation in the two 
branches, that the idea of a conciliatory adjustment must 
have been in contemplation of the House in the appoint- 
ment of this Committee. But still, how to effect this 
salutar}^ purpose was the question. Many of the mem- 
bers, impressed with the utility of a General Govern- 
ment, connected with it the indispensable necessity of a 
representation from the States according to their numbers 
and tvealfh ; while others, equally tenacious of the rights 
of the States, would admit of no representation but such 
as was strictly Federal, or, in other words, equality of 
suffrage. This brought on a discussion of the principles 
on which the House had divided, and a lengthy recapitu- 
lation of the arguments advanced in the House in sup- 
port of these opposite propositions. As I had not openly 
explained my sentiments on any former occasion on this 
question, but constantl}^, in giving my vote, showed my 
attachment to the Nationcd Government on Federal jprinci- 
pies, I took this occasion to explain my jnotives. 

" These remarks gave rise to a motion of Dr. Franklin, 
which, after some modification, was agreed to, and made 
the basis of the following report of the Committee : 

" ' The Committee to whom was referred the eighth 



EllioVs Debates, vol. i, p. 477. 



132 CONSTITUTION A.L YIEW OF THE WAR. [Vol.1. 

resolution reported from the Committee of the whole 
Ilousej and so much of the seventh as had not been de- 
cided on, submit the following report: 

" ' That the subsequent propositions be recommended 
to the Convention, on condition that both shall be gene- 
rally adopted. 

" '' That in the first branch of the Legislature, each of 
the States now in the Union be allowed one member for 
every forty thousand inhabitants of the description re- 
ported in the seventh resolution of the Committee of the 
whole House. That each State, not containing that 
number, shall be allowed one member. 

"*That bills for raising or apportioning money, and 
for fixing salaries of the officers of Government of the 
United States, shall originate in the first branch of the 
Legislature, and shall not be altered or amended by the 
second branch ; an(4 that no money shall be drawn from 
the public treasury but in pursuance of appropriations 
to be originated in the first branch. 

'' 'That in the second branch of the Legislature, each 
State shall have an equal rote! " 

This report was the has'is of the great compromise, as 
it was called, between the two distinct parties in the 
Convention — the Nationals and the Federals. It discloses 
the nature and the extent of the contest. At first it 
would seem that it was a fair adjustment of the question 
— not so thought the vigilant sentinels and guardians of 
the Sovereignty of the States ; for it conceded the abso- 
lute power of the popular branch of the Congress over 
the States in the Senate on one class of measures. That 
a majority of the States would not yield. The right of 
the States to hold an absolute negative in their own 
hands, in all cases, they would not give up. The first 
part of this report, after being discussed, and after it was 



Col. l\r.j THIS IS A GOVERNMENT OF STATES. 133 

ascertained that it could never receive the sanction of a 
majority of the States, was recommitted to a committee 
of five. Their report was also discussed, a, id likewise 
foiled to receive the sanction of a majority of the States. 
The subject was then recommitted to another Grand 
Committee, consisting of one from each State, whose final 
report was agreed to. That fixed the number of mem- 
bers to which each State should be entitled in the first 
House of Representatives, and provided for future appor- 
tionments according to population, etc., as it stands in 
the Constitution. The clause in the first report, that 
gave the House of Representatives absolute power over 
money ^ hills, etc., was abandoned. The latter imrt of the 
first report, securing to the States severally an equal vote 
in the Senate, was not touched afterwards. It stood as 
first reported, that in the Senate, or second branch of the 
Congress, each State should have an- equal vote. This, 
however, was not finally adopted without another strug- 
gle. Before the question was taken on agreeing to it, it 
was moved that instead of an equality of votes, the 
States should be represented in the second branch as 
follows : New Hampshire, by two members ; Massachu- 
setts, four; Rhode Island, one; Connecticut, three; 
New York, three ; New Jersey, two ; Pennsylvania, four ; 
Delaware, one; Maryland, three; Virginia, five; North 
Carolina, three ; South Carolina, three ; Georgia, two ; 
making, in the whole, thirty-six."* 

This, by several, was thought to be a fair settlement 
of the dispute, allowing the Sovereign States still to be 
represented as such, but not equally. Mr. Wilson, Mr. 
Madison, and the Nationals generally, favored it as a 
last hope of getting as near what they desired as possi- 



EllioVs Debates, vol. i, p. 205. 



134 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

ble. Some of the Federals were not disinclined to accede 
to it as a compromise ; amongst these was Mr. Gerrj-, of 
Massachusetts; but not so the unyielding advocates of 
State Sovereignty. " Mr. Ellsworth asked two ques- 
tions : one of Mr. Wilson, whether he had ever seen a 
good measure fail in Congress for want of a majority 
of the States in its favor; the other of Mr. Madison, 
whether a negative lodged with the majority of the 
States, even the smallest could be more dangerous than 
the qualified negative proposed to be lodged in a single 
Executive Magistrate, who must be taken from some one 
State."* 

" Mr. Sherman, of Connecticut, urged the equality of 
votes, not so much as a security for the small States as 
for the State Governments, which could not be preserved 
unless they were represented."-]- 

" Mr. Dayton declared the smaller States can never 
give up their equality ; for himself, he would in no event 
yield that security for their rights. "J 

'' Dr. Johnson, of Connecticut, would consent for num- 
bers to' be represented in the one branch, but the States 
must be in the other."§ 

So the final report of the Second Grand Committee on 
this subject was adopted, which retained to the States an 
equal vote in the Senate, the same equality under the 
new Constitution which they had under the former Arti- 
cles of Confederation. It was well ascertained that 
without this security the smaller States would not con- 
federate further upon any basis ; and that all attempts 
at remodelling the Confederation would inevitably fail 
unless all views of getting them to surrender this right 
were abandoned. They were so abandoned. The com- 

* Mndimr. ropers, vo. ii, p. 1106. f Madison Papers, vol. ii, p. 1098 
i Madison Papers, vol. ii, p. 1098. I Madison Papers, vol. ii, p. 987, 



Coi.IV.] THIS IS A GOVERNMENT OF STATES. 135 

plete negative of a majority of the States in the Senate 
was retained. So the bond of this ''more perfect Union" 
was written. In this, as in the old, each State, as a State, 
has an equal vote in the Last resort upon all measures.'" 

Mr. Curtis, in his ^^ History of the Gonstitutloii" speak- 
ing of this feature in the Constitution, says : "It is a 
part of the Constitution which it is vain to try by any 
standard of theory ; for it was the result of a mere com- 
promise of opposite theories and conflicting interests'.''^ 
It was, without question, a compromise between the con- 
tending parties in the Convention, to the extent that the 
unyielding advocates of a strictly Federal system did, by 
it, consent to a Popular Representation from the several 
States, in the House, but with the full reservation, on 
the part of the States, of a complete and absolute nega- 
tive, in the Senate, on all the acts of the popular Branch 
thus conceded ; and it is utterly vain to attempt, by any 
bare theory or speculation, to make any thing else of it. 
This feature, itself, conclusively establishes the Federal 
character of the Government — not upon any theor}^, but 
by the ''inexorable logic" of the flict itself. It, more- 

* Mr. Baucroft maintains that the idea which fcrmed the basis of this 
Great Compromise of the Constitution, as he calls it, originated with ]SIr. 
Jeflerson. In the adoption of the Articles of Confederation, in 177G-7, 
there was no little difficulty encountered in establishing the rule of 
voting in Congress — some insisting that the vote should be by Delegates 
per capita, and some by Colonies alone, without respect to numbers or 
wealth — each Colony to have an equal vote on ail questions. This is 
the way it was then settled ; but in referring to the debates then iiad, 
Mr. Bancroft gives this account of it : " The vote, said Sherman, of 
Connecticut, should be taken two ways — call the Colonies, and call tht 
iudividuals, and have a majority of both. This idea he probably derived 
from JeflTerson, who enforced in private, as the means to save the Union, 
that any proposition might be negatived by the Representatives of a 
majority of the people, or of a majority of the Colonies. Here 1 tht 
thought out of which the great compromise of our Constitution ?fab 
evolved." — Bancroft^ vol. ix, p. 53. 

t Curtis on the Constitution^ vol. ii, p. 167. 



13(5 CONSTITUTIONAL YIEW OF THE WAE. [Vol. L 

over, totally annihilates all bare theories or specula- 
tions, however ingeniously put forth, in whatever spe- 
ciousness of garb or rhetoric, going to show that the 
Government of the United States is a Government of 
the People of the Whole Country, as one community or 
Nation. 

Upon such a theory, what a caricature of a National 
Representative Government it would be ! Just consider 
its structure a moment under such a theory 1 The six 
New England States, Maine, New Hampshire, Massa- 
chusetts, Rhode Island, Connecticut and Vermont, ac- 
cording to the census of 1860, had a population, all to- 
gether, of three millions one hundred and thirty-five 
thousand three hundred and eighty-three. New York, 
alone, by the same census, had a population of three 
millions eight hundred and eighty thousand seven hun- 
dred and thirty-five ! This single State had over a half 
a million more population than the other six, all together! 
And 3^et, under the Constitution, the three millions of 
people in these six States have six times the power in 
the Government that the three millions and a half have 
who are in New York. Or take another view. This little 
over three millions of people, in these six New England 
States, have just as much power in the Administration 
of the Government as the thirteen and a half millions 
have who constitute the aggregate population of the six 
States of New York, Pennsylvania, Virginia, Ohio, In- 
diana and Illinois. That is, they have just as much 
power in passing or defeating any measure whatever. 

All this is perfectly consistent with the fjict of its 
being a strictly Federal Government, limited, in its 
action, to strictly Federal objects. But, upon the sup- 
position, idea, or theory, that it is a Government of the 
entire population of the United States, as one connnunity 



Col. IV.] THIS IS A GOVERNMENT OF STATES. 137 

or Nation, with conti^ol over internal State affairs, the 
whole matchless framework of our ancestors — the Consti- 
tution — which, as it was made, deserves the just admirar- 
tion of the world — would become, in its practical work- 
ings, nothing but a frightful political monstrosity ' Well 
might the New England States, looking to no higher 
motives than their interest and power, be satisfied to 
have such a theory established, so long as they could 
hold on to the present structure. If that theory, how- 
ever, should, unfortunately for Public Liberty, ever be 
established, a Reconstruction, of a very different character 
from that we noAv hear so much about, will, sooner or 
later, be inevitable ! 

But, no, sirs ; this is not a Government of the People 
of this Country as one Nation. 

It is still, under the Constitution, as it was under the 
x\rticles of Confederation, a Government of States, and 
for States. It was so agreed to in the Convention. It 
was so nominated in the bond. It vv^as so submitted to 
the States for their approval and ratification, ^md not to 
the people of the whole country, in the aggregate, as 
you, with Mr. Motley and others, maintain ; but it was 
so submitted to the States, in their political organiza- 
tions, and by them, as States, it was so agreed to and 
ratified. Eacli State retained the absolute power to 
govern its own people in its own way, in all their do- 
mestic relations, w^ithout any interference by the people 
of the other States, or the Federal Government, except 
in the specified cases set forth in the Constitution. 

Prof. Norton. Why, does not the Preamble to tlie 
Constitution say : " We, the people of the United States," 
etc., and does not this show clearly that it was sub- 
mitted to the whole people, and by them acted upon, 
ratified and adopted, and not by the States, as States? 



138 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

Mr. Stephens. My dear sir, it shows no such thing ; 
and it is a wonder to me how any one should ever have 
entertained such an idea. 

Prof. Norton. Why, does it not say : " We, the 
people of the United States, in order to form a more 
perfect Union," etc ? 

Mr. Stephens. Yes ; but what is the meaning of " We, 
the people of the United States," as they here stand? 
The meaning and sense of words must always be under- 
stood from the connection in which they are found. We 
have abundant and conclusive evidence that they could 
not have been intended to mean, in the connection where 
they here stand, what you would have them imply. 
Because, the very authority of the Delegates — their cre- 
dentials — which, we have seen, stated that what they 
should do, should be referred back to the States, should 
be submitted to them, and should not be binding, unless 
approved by them, severally and respectively. And, 
besides, we know that this preamble, as it unanimously 
passed the Convention, on the 7th of August, 1787, was 
in these words : — '^' 

" We, the people of the States of New Hampshire, 
Massachusetts, Rhode Island and Providence Plantations, 
(Connecticut, New York, New Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, North Carolina, South 
Carolina, and Georgia, do ordain, declare, and establish 
the following Constitution," etc. 

This shows what was the meaning of the Convention. 
It was we the people of each State. The change in the 
phraseology was made by a sub-committee on style, not by 
the Convention, except in their agreement to the Report 
of said committee. Why was it made ? For a very obvious 

* EllioVs Debates^ vol. i, p. 230. 



Col. IV.] PREAMBLE OF THE CONSTITUTION. 139 

reason. It was not known which of the States would 
ratify it. Hence it was exceedingly inappropriate to set 
forth in advance the States by name. By the terms of 
the Constitution, Article VII,* it was to go into opera- 
tion between such of the States as might ratify it, if as 
many as nine or more should do so. The committee on 
style readily perceived that it would be exceedingly out 
of place, to have, in the preamble to the organic law, 
terms embracing a people, or States, who might not put 
themselves under it. For instance, Rhode Island and 
North Carolina did not ratify the Constitution for some 
time. During this period they were entirely out of the 
Union. They might have remained out until now. 
Suppose they had. How oddly would this preamble to 
the Constitution have read : " We the people of New 
Hampshire, Rhode Island, North Carolina, etc., in order 
to form a more perfect Union," etc., when the people of 
Rhode Island and North Carolina had done no such 
thing. To preserve symmetry in their work, and retain 
the same idea was what the Committee did in their change 
of phraseology. As they put it, it would embrace the 
people of such States only as should adopt it. Th(^y 
would then be the people of the States, respectively, 
which would tliereby be United. States United and 
United States mean the same thing. 

Upon a close scrutiny of the change of language in 
the Preamble, as it was at first adopted by the Conven- 
tion, and as it was reported by the committee on style, 
some exceedingly interesting views are suggested, Ijut 
these are far from favoring the inference usually drawn 
from it. Let me call your special attention to them, for 
they have a direct and important bearing upon the ])oiiit 

* See A2>2)en(lix C. 



140 CONSTITUTIOXAL VIEW OF THE WAR. [Vol. I. 

now before us. The words, as agreed to at first, in Con- 
vention, as we have seen, were : 

" We, tlie people of the States of New Hampshire, 
Massachusetts, Rhode IsLand and Providence Planta« 
(ions, Connecticut, New York, New Jersey, Pennsylvania, 
Delaware, Maryland, Virginia,. North Carolina, South 
Carolina, and Georgia, do ordain, declare, and establish 
the following Constitution for the government of our- 
selves and our posterity."''' 

Now look closelj^ to the words substituted, and weigh 
nicely the import of the words left out, as well as those 
inserted. As the clause was changed by the committee 
on style, and afterwards unanimously adopted in the 
Convention, it reads as follows : 

" We, the people of the United States, in order to form 
a more perfect Union, establish justice, insure domestic 
tranquillity, provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this 
Constitution for tlie United States of America."f 

The most striking difference in phraseology between 
the two, is that which sets forth the object in forming 
" a more perfect Union," etc., to be, to " ordain and 
establish this Constitution," not for the people in any 
sense, but for States as political societies. As the words 
originally stood, the inference might have been drawn 
from the bare words themselves, that the object was 
to form a government for the people in the aggregate. 
" We, the people of the States of New Hampshire, 
Massachusetts, etc., * * * do ordain and establish the 
following Constitution for the government of ourselves 
and our posterity." From these words, I say, the in- 



* EUioVs Debates, vol. i, p. 231. f EllioVs Debates, vol i, p. 293. 



Col. lY.] PREAMBLE OF THE CONSTITUTION. ] ^^ 

ference might have been drawn that tlic object was to 
ibrni a government for the people in the aggregate, Ijut 
this inference is completely rebutted by the chano-e of 
phraseology. As it stands, the instrument " is ordained 
and established" as a Constitution for States — for the 
United States. The same as if it read "for the States of 
this Union." 

The change, in this particular, is very important, and 
the very Preamble, which is so often alluded to, for a 
directly opposite purpose, conclusively shows that the 
Government was intended to be, and is a Government of 
States, and for States, as I said. In the change of phra- 
seology the introduction of the word Union has a won- 
derful significance of itself. The new Constitution was 
proposed " in order to form a more perfect Union,'' that is, 
it was to make more perfect " the Union" then existing. 
That, w^e have seen, was a Union of States under the Arti- 
cles of Confederation. It was to revise these Articles, to 
enlarge the powers under them, or, in other words, to 
perfect that Union, that the Convention was called; and 
that was the object aimed at in all their labors to the 
conclusion of their work as set fortli in this Preamble. 
So much for the evidence furnished by the Preamble. 

But to put the matter beyond all cavil ihe last clause 
of the Constitution settles that question. That clause is 
in these words : 

"The ratification of the Conventions of nine States 
shall be sufficient for the establishment of this Constitu- 
tion between the States so ratifying the same."* 

The word, hetiveen, was put in on special motion, which 
shows how closely words were watched, w^igh^d, and 
guarded at the time.f This shows, beyond all doubt or 



See Constitution, Appendix C. \ EllioVs Debates, vol. i, p. 277. 



142 CONSTITUTIONAL VIEW OF THE WAR. [Vol. T, 

cavil, that it was to be acted upon by States as States, 
and not by the people of all the States in one aggregate 
mass. That, you will permit me, most respectfully and 
good-humoredly, to say, as it seems to me, is one of thf; 
niost preposterous ideas that ever entered into the head 
of a sensible man. 

Why the very last act of the Convention, in giving a 
finishing touch to the Constitution, and thereby impress- 
ing upon it forever their understanding of their own 
work, that it was a Union of States, is in these words : 

" Done in Convention, by the unanimous consent of the 
States present, the 17th day of September, in the year of 
our Lord, 1787, and of the Independence of the United 
States of America the twelfth. In witness whereof we 
have hereunto subscribed our names."* 

The Delegates signing their names by States. 

The Constitution was then sent, with a letter, to the 
States in Congress assembled, requesting that it should 
be submitted by them to the several State Legislatures, 
for them to provide for its submission to Conventions in 
the several States, to be acted on by them, and to go into 
effect hetioeen such States as should ratify it, if so many 
as nine or more should so ratify ii.-j- 

Congress, immediately upon the receipt of the report 
of the Convention, passed the following resolution : 

"Resolved ■unanimously, That the said report, with the 
resolutions and letter accompanying the same, be trans- 
mitted to the several Legislatures, in order to be sub- 
mitted to a Convention of Delegates in each State, by the 
people thereof, in conformity to the resolves of the Con- 
vention made and provided in that case. J" 

* EllioVs Debates, vol. i, p. 317. f EllioVs Debates, vol. i, p. 306. 

I EllioVs Debates, vol. i, p. 319. 



Col. IV.] MR. MOTLEY REVIEWED 143 

These are facts about which there can be no disput<i 
or doubt 

What, then, becomes of Mr. Motley's statement tliat 
"the Constitution was not drawn up by the States! It 
was not promulgated in the name of the. States ! It was 
not ratified by the States ! The States never acceded to 
it! It was 'ordained and established' aver the States by 
the people of the whole land in their aggregate capacity, 
acting through Conventions of Delegates expressly chosen 
for the purpose within each State, indej^endently of the 
State Governments after the project had been framed !" 

Was a grave statement of historical facts ever more 
reckless or more directly in conflict with indisputable 
public records ? By whose authority did the Convention 
meet that framed the Constitution but that of the several 
States? Whose work was the Constitution so framed 
but that of the States themselves through their appointed 
Deputies or Delegates, as the Constitution declares on its 
very face ? By whose authority were the State Conven- 
tions called to act upon it in their Sovereign capacity but 
the authority of the State Governments, the State Legis- 
hitures ? How can it be said that the Constitution was 
established over the States by a power superior to the 
States, when the paper itself declares it to be a Constitu- 
tion " for the United States," that is, for the States that 
were to be united by it, and to be established, not aver^ 
but ^'^hetween the States so ratifying" \i^. Yes, '^'between 
the States so ratifying" it? The States, as States, 
through Conventions of their people, embodying the Sov- 
ereignty of each State severally, were to raiify it, before 
it could have any binding force or effect upon any one of 
them or their people. 

Yes, T repeat, hetween the States so ratifying it ! That 
is the lanofuage of the Constitution itself, and there it 



144 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I, 

will stand as an everlasting refutation of the assertion 
of Mr. Motley and all others of like character, by whom- 
soever made, without further comment by me ! 

Prof. Norton. Why were the words "We, the people," 
introduced in the preamble at all, if your views be cor- 
rect ? Does not this show clearly, that it was expected 
and intended, that the whole people should act on it 
through their State Conventions ? Was it not, therefore, 
virtually submitted to them for their approval and adop- 
tion? Why was it not simply referred back to the State 
Legislatures ? 

Mr. Stephens. For the clearest reason in the world. 
It was because ultimate, absolute Sovereignty resided 
with the people of each State respectivel^\ The addi- 
tional Sovereign powers, which were proposed to be dele^ 
gated to the States jointly under the Constitution, such 
as the taxing power, and the power to regulate trade, 
with, the right to pass laws acting directly upon the citi- 
zens of the Sovereign States, etc., could only be delegated 
by the people in their Sovereign capacity. This delegjir 
tion could be made only by a Convention of the people 
for that purpose. These powers, by their then existing 
Constitutions, were vested in their State Legislatures. 
The Legislatures of the several States, at that time, had 
the sole power to tax, to regulate trade, etc. These 
powers had to be resumed by the people of each State 
separately, and tidvcn by them from that set of agents 
and delegated to another set' of agents. No power short 
of the Sovereignty itself, in each State, could do this ; 
or in other words, as ultimate Sovereignty resided in the 
people of the States respectively, all new delegations of 
power, as w^ell as all changes of agents in whom the dele- 
gated powers were to be intrusted, could only be made 
by the people themselves of each state in their Sovereign 
capacity. This is the whole of it in a nutshell. 



Col. IV.] WHY SUBMITTED TO THE PEOPLE. 145 

The Legislatures of the States were not competent to 
make this delegation of additional powers to the United 
States, because they were acting under delegated powers 
themselves. They were possessed of no power, except 
such as the people of the States, in their Sovereign 
capacity, had delegated to them, and amongst those dele- 
gated powers, w^ith which they were clothed, none had 
been granted, empowering them to make this new dele- 
gation of powers to the General Government. It was for 
this reason, amongst others, that Mr. Hamilton, in the 
twenty-second number of the Federalist, showed why the 
Constitution should be submitted to Conventions in the 
several States, instead of to the Legislatures. This is 
why he said its foundation ought to be deeper than " the 
mere sanction of delegated authority," why the fabric 
" ought to rest on the solid basis of the consent of th-e 
people." All political power, said he, "ought to flow, 
immediately, from that pure original fountain of all legiti- 
mate authority." 

Among the advocates in the Convention for submitting 
the Constitution to the people of the States, or rather to 
Conventions in the States, representing the people directly 
upon this question, none was more zealous or conspicuous, 
than Mr. Mason, of Virginia, one of the strongest State 
Sovereignty men in the body. 

" He considered a reference of the plan, to the authority 
of the people, as one of the most important and essential 
of the resolutions. The Legislatures have no power to 
ratify it. They are the mere creatures of the State Con- 
stitutions, and cannot be greater than their Creators. 
And he knew of no power in any of the Constitutions — 
he knew there was no power in some of them — that could 
be competent to this object. Whither, then, must we 
resort? To the people, with whom all power remains, 
10 



146 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

etc. It was of- great moment, he observed, that this doc- 
trine should be cherished, as the basis of free Govern- 
ment."'^' 

Mr. Curtis, in his History of the Constitution, gives, 
somewhat, more eLaborate reasons, but all based upon the 
same principle. He says : 

" The States, in their corporate capacities, and through 
the agency of their respective Governments, were parties 
to a Federal system, which they had stipulated with each 
other, should be changed only by unanimous consent 
The Constitution, which was now in the process of format 
tion, was a system, designed for the acceptance of the 
people of all the States, if the assent of all could be ob- 
tained ; but it was also designed for the acceptance of a 
less number than the whole of the States, in case of a 
refusal of some of them ; and it was at this time highly 
probable that at least two of them would not adopt it. 
Rhode Island had never been represented in the Conven- 
tion; and the whole course of her past history, Avith 
reference to enlargements of the powers of the Union, 
made it quite improbable, that she ^ would ratify such a 
plan of Government, as was now to be presented to her. 
The State of New York had, through her Delegates, 
taken part in the proceedings, until the final decision, 
which introduced into the Government a system of popu- 
lar representation ; but two of those Delegates, entirely 
dissatisfied with that decision, had withdrawn from the 
Convention, and had gone home to prepare the State for 
the rejection of the scheme. The previous conduct of 
the State had made it not at all unlikely that their efibrts 
would be successful. Nor were there wanting other indi- 
cations of the most serious dissatisfaction, on the part of 

* Ifadii'oyi Pcqjcrs^xoL v, to EllioVs Debates, p. 352. 



Col. lY-lTHE rP]OPLE ALONE ARE SOYEREKJN. 147 

men of great influence in some of the other States. 
Unaninnty liad already become hopeless, if not imprac- 
tical^le ; aiid it was necessary, therefore, to look forward 
to the event of an adoption of the sjstem by a less num- 
ber than the whole of the States, and to make it practi- 
cable for a less number to form the new Union for which 
it provided. This could only be done by presenting it 
for ratification to the people of each State, who possessed 
authority to withdraw the State Government from the 
Confederation, and to enter into new relations with the 
people of such other States as might, also, withdraw 
from the old and accept the new system."* 

The whole of this view rests upon the acknowledged 
principle, that Sovereignty, under our system, or that 
Paramount authority, which can rightfully make and 
unmake Constitutions, and which has the uncontrolled 
right to resume and re-invest, by delegation, the exercise 
of Sovereign Powers at will, subject only to the laws of 
Nations, resided at that time with the several States. It 
suggests a very pertinent inquiry, and that is, if any 
number of States, by virtue of this ultimate, absolute 
Sovereignty, had the undoubted right, as he clearly 
admits they had, to withdraw at that time from the old 
Union, Avhich was declared upon its face to be perpetual, 
why could not a like number, or any number, of the same 
States, by virtue of the same ultimate, absolute Sove- 
reigr.ty, in like manner, in 1861, withdraw from the 
new Union, wherein no such pledge for perpetuitj^ was 
given or required ? 

But I will not anticipate by a digression here-. We 
are now on the point, whether the principles, on which 
the Confederation was based, that is, a Compact or Union 

* Curiis's IlistO'-y of the Constitution, vol. ii, l)k 4, cli, 8, pp. ISl, 182 



148 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I, 

between States, were changed by the adoption of the 
new Constitution. Whether the present Government of 
the United States is a National Government proper, that 
is, whether it is a Government of the whole people con- 
solidated into one Nation, or whether it still retains all 
the original Federative features of the first articles of 
Confederation. And, whether ultimate Sovereignty or 
Paramount authority still resides under the Consti- 
tution where it did under the Confederation. 

We have seen that Judge Story's first resolution of the 
Convention has not a single leg to stand upon.* We 
have, also, seen that all arguments drawn from " We, 
the people," in the Preamble to the Constitution, are 
quite as legless and groundless.-]- 

Prof. Norton. What do you do with Washington's 
letter, where he says, that the great object with the Con- 
vention was to consolidate the Union ? 

Mr. Stephens. Do with it ! Why I show from that 
the same principles I show from all the facts of our his- 
tory. That shows that the object of the Convention had 
been to perfect the terms of the Union, which was the sole 
object for which the Convention had been called. 

Prof. Norton. Does he not say, that the object was 
the Consolidation of the Union? And does not that 
clearly show that he considered the Sovereignty of all 
the States merged in the Union under the Constitution ? 

Mr. Stephens. By no means. So fiir from it, it shows 
most clearly directly the contrary. That letter, you 
must recollect, was not prepared by Washington, but by 
the Convention that framed the Constitution. It was 
prepared and reported with the Constitution. It was 
taken up and adopted, paragraph by paragraph, the same 

* Ante, p. 123-4. t Ante, p. 140-41. 



Col. IV.] WASHINGTON'S LETTER TO THE STATES. 149 

day, and immediately after the adoption of the seventh 
Article of the Constitution, which I have just read.''' It 
was contemporaneous action with it, and by the same 
body of men, and cannot, therefore, be presumed to have 
nny thing in it intended to be inconsistent with, that 
Article of the Constitution. The letter was one from 
the Convention that had just finished its labors, which 
they authorized Washington to send to the States, in 
Congress assembled, for the purpose of presenting them 
with the result of their work. It is in these words.-j- 

'' We have now the honor to submit to the considera- 
tion of the United States, in Congress assembled, that 
Constitution which has appeared to us the most advisable. 

'• The friends of our country have long seen and de- 
sired that the power of making war, peace, and treaties ; 
that of levying money and regulating commerce; and the 
correspondent executive and judicial authorities, shall be 
fully and effectually vested in the General Government 
of the Union. But the impropriety of delegating such 
extensive trust to one body of men is evident. Thence 
results the necessity of a different organization. It is 
obviously impracticable, in the Federal Government of 
these States, to secure all rights of Independent Sove- 
reignty to each, and yet provide for the interest and 
safety of all. Individuals entering into society must 
give up a share of liberty to preserve the rest. The 
magnitude of the sacrifice must depend as well on situa- 
tion and circumstances as on the object to be obtained. 
It is at all times difficult to draw with precision the line 
between those rights which must be surrendered, and 
those which may be reserved. And, on the present 
occasion, this difiiculty was increased by a difference, 

* Journal of the Convention. EUioVs Debates, vol. i, p. 305. 
t MlioVs Debates, vol. i, pp. 305, 30U. 



[50 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

among the several States, as to their situation, extent, 
liabits, and particular interests. 

" In all our deliberations on this subject, we kept 
eteadilv in our view that which appeared to us the great- 
est interest of every true American — the consolidation 
of the Union, in which is involved our prosperity, feUcity, 
safety — perhaps our National existence. This important 
consideration, seriously and deeply impressed en our 
minds, led each State in the Convention to be less rigid 
in points of inferior magnitude, than might have been 
otherwise expected. And thus the Constitution which 
we now present is the result of a spirit of amity, and of 
that mutual deference and concession which the pecu- 
liarity of our political situation rendered indispensable. 

" That it will meet the full and entire approbation of 
every State is not, perhaps, to be expected. But each 
will doubtless consider that, had her interest alone been 
consulted, the consequences might have been particularly 
disagreeable and injurious to others. That it is liable to 
as few exceptions as could reasonably have been expected, 
we hope and believe ; that it may promote the lasting 
welfiire of that country so dear to us all, and secure her 
freedom and happiness, is our most ardent wish." 

Washington signed this letter as President of the 
Convention, and addressed it to the United States, in 
Congress assembled. Who were these States thus ad- 
dressed? Thirteen Sovereignties, as we have seen, 
between whom there was a well-known Union existing, 
founded upon Articles of Confederation. These States 
thus addressed were then in Congress assembled, under 
the terms of that Union. The body of men addressing 
them was a Convention of Delegates from each of these 
States, whicli had met in pursuance of a resolution of 
that Congress, as we have seen, for the sole and express 



Col. IV.] WxVSHINGTON'S LETTER TO THE STATKS. 151 

purpose of revising the Articles of the Union which then 
existed between them as separate and distinct Sovereign 
Powers. This letter simply informed the States thus 
assembled what they had done in the premises, and 
that they thought that the work of their hands, so 
sent them in accordance with their instructions, was the 
best that could be done with the great business intrusted 
to their charge. They say, and say truly, that the great 
object with them in their deliberations was the Musolitla- 
tion of the Union. This, of course, was not its abroga- 
tion and dissolution, or the formation of a new and dif 
ferent one. The object was to sirengtlicn the Union of 
States. That was the only Union existing, and the only 
Union to which they could have referred. The object 
was to strengthen or consolidate the bonds of that Union, 
and not to weaken them, much less to sever and utterly 
destroy them, as would be the import of the word accord- 
ing to your construction. The object was to render the 
Union of States more perfect or better calculated to 
accomplish the ends for which it was at first formed. Is 
not this perfectly clear and true beyond all question? 
Could any thing be more preposterous or absurd than to 
s-uppose that such a body of men, so called together, would, 
in giving an account of their labors to the body calling 
them, have stated that the great object with them had 
been to do the very reverse of what they had been called 
to do ? Can any one believe that Washington could ever 
have been induced to sign a letter with such design and 
ii.tention ? If the Federal character of the Government 
had been intended to be abandoned in the plan they 
proposed, would not these very words have been neces- 
sarily left out? Do not the words of themselves, in 
their connection wHtli their contemporaneous action, 
under all the circumstances and surroundings, most con- 



152 CONSTITUTIONAL VIEW OF THE WAR. [Vol.1. 

clusively rebut the inference that you and others draw 
from them, and establish beyond the shadow of doubt 
that the object was not to merge the Sovereignty of all 
the States into one, and to abandon the Union of Sove- 
reign States by the establishment of a great National 
Government? 

Look, also, to other words in the same letter. " It is 
obviously impracticable in the Federal Government of 
these States to secure all rights of Independent Sovereignty 
to each" etc. Many Sovereign powers had been dele- 
gated under the Articles of Confederation. More were 
now proposed to be delegated in the same way. This 
required " a different organization^ That is, a division 
of the departments into which all the powers were to be 
intrusted. A change of machhiery in operating the 
system, and not a change of the basis of the system. 
The difficulty attending these changes " was increased 
by a difference among the States." "This important 
consideration, etc., led each State in the Convention," 
etc. Does not the whole of this paper most clearly show 
that the Convention meant by it simply to say that their 
great object was to strengthen and make more perfect 
the bonds of the Federal Union then existing ? and that 
they thought that object would be accomplished by the 
States adopting the plan proposed. "That it will meet 
the full and entire approbation of every State," they say, 
'' is not perhaps to be expected." 

In what respect, in tone or sentiment, touching the 
character of the Union to be consolidated, does this 
letter differ from a similar one sent to tiio States by 
Congress with the first Articles of Union, in 1777? 
In that, amongst other things. Congress said, "that to 
form a permanent Union, accommodated to the opinions 
and wishes of the Delegates of so many States, differing 



Col. IV.] SHERMAN AND ELLSWORTH'S LETTER. 153 

in habits, produce, commerce, and internal police, was 
found to be a work which nothing but time and reflec- 
tion, conspiring with a disposition to conciliate, could 
mature and accomplish. Hardly is it to be expected 
that any plan, in the variety of provisions essential to 
our Union, should exactly correspond with the maxima 
and political views of every particular State. Let it be 
remarked, that after the most careful inquiry and the 
fullest information, this is proposed as the best which 
could be adapted to the circumstances of all, and as that 
alone which affords any tolerable prospect of general 
ratification. Permit us, then, earnestly to recommend 
these Articles to the immediate and dispassionate atten- 
tion of the Legislatures of the respective States. Let 
them be candidly reviewed under a sense of the difficulty 
of combining, in one general sj^stem, the various senti- 
ments and interests of a continent, divided into so many 
Sovereign and Independent communities, under a convic- 
tion of the absolute necessity of uniting all our councils, 
and all our strength, to maintain and defend our com- 
mon liberties.'"'' Does the letter of the Convention look 
any more to the abrogation of State Sovereignties than 
the letter of Congress to the States in 1777 ? 

Here is also a letter from Eoger Sherman and Oliver 
Ellsworth, two very distinguished Delegates to the Con- 
vention from Connecticut, written on the 26th of Sep- 
tember, 1787, and addressed to the Governor of their 
State, making a report to him of the action of the Con- 
vention, and the result of their labors. This shows 
clearly that their understanding of the letter of the Con- 
vention to Congress was in accordance with the views 
now presented. 

* EllioVs Debates, vol. i, p. 69. 



154 CONSTITUTIONAL YIEW OF THE WAR. [Vol.1. 

" We have the honor to transmit to your Excellency," 
they say, '^ a printed copy of the Constitution formed by 
the Federal Convention, to be laid before the Legislature 
of the State. 

"' The general principles which governed the Conven- 
tion, in their deliberations on the subject, are stated in 
their address to Congress. 

" We think it may be of use to make some further 
observations on particular parts of the Constitution. 

" The Congress is differently organized ; yet the whole 
number of members, and this State's proportion of suf- 
fra"'e, remain the same as before. 

" The equal representation of the States in the Senate, 
and the voice of that branch in the appointment to 
offices, will secure the rights of the lesser as w^ell as of 
the greater States. 

" Some additional powers are vested in Congress, which 
was a principal object that the States had in view in 
appointing the Convention. Those powers extend only 
to matters respecting the common interests of the Union, 
and are specially defined, so that the particular States 
retain their Sovereignty in all other matters. 

" The objects for which Congress may apply monej^*^ 
are the same mentioned in the eighth article of the Con- 
federation, viz.: for the common defence' and general 
welfare, and for payment of the debts incurred for those 
purposes. It is probable that the principal branch of 
revenue will be duties on imports. What may be neces- 
sary to be raised by direct taxation is to be apportioned 
on the several States, according to the number of their 
inhabitants ; and although Congress may raise the money 
by their own authority, if necessary, yet that authority 
need not be exercised, if each State will furnish its 
quota. 



CoL.IY.] WASniNGTON ON ACCESSION. 155 

'^ The restraint on the Legislatures of the several States 
respecting emitting bills of credit, making any thing but 
money a tender in payment of debts, or impairing the 
obligation of contracts by ex j^osf facto laws, was thought 
necessar}^ as a security to commerce, in which the inter- 
est of foreigners, as well as of the citizens of different 
States, may be affected. 

"The Convention endeavored to provide for the energy 
of Government on the one hand, and suitable checks on 
the other hand, to secure the rights of the particular 
States, and the liberties and properties of the citizens. 
We wish it may meet the approbation of the several 
States, and be a means of securing their rights and 
lengthening out their tranquillity. With great respect, 
we are. Sir, your Excellency's obedient, humble servants."* 

Could any thing be more pertinent or conclusive, upon 
these points, than this letter ? 

But we have numerous contemporaneous letters from 
Washington to divers persons, which throw a flood 
of light upon the subject, and show clearly his under- 
standing of that letter of Congress to have been in accord- 
ance with the views I have presen+ed. These letters 
also show wdiat little weight is to be given to Mr. Motley's 
assertion that the States never acceded to the Constitution 
as a Compact between them. On this point we have in 
these letters authority higher than that of Mr. Motley. 
What the States did do, we shall see. Whether their 
action can be properly termed accession or not, has been 
a matter on which men have differed. Mr. Motley is on 
one side, while General Washington, Mr. Jefferson, Gov- 
ernor Randolph, Judge Marshall, Mr. Madison, and a 
host of others, are on the other side. 



* EllioVs Debates^ vol. i, p. 491. 



156 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

In a letter of General Washington to Bushrod Wash- 
ington, on the 10th of November, 1787, while the Con- 
stitution was before the States for consideration, he 
says :* 

" Let the opponents of the proposed Constitution in 
this State be asked — and it is a question they certainly 
ou2;lit to have asked themselves — what line of conduct 
they would advise it to adopt, if nine other States, of 
which I think there is little doubt, should accede to the 
Constitution ?" 

In the same volume, on page 304, is a letter from 
General Washington to Mr. Madison, dated the 10th of 
January, 1788. In this he says: 

" But of all the arguments that may be used at the 
Convention which is to be held, the most prevailing one 
I expect will be that nine States at least will have acceded 
to it." 

Here is a letter from Washington to Charles C. Pinck- 
ney, dated the 28th of June, 1788, in which he says :f 

" No sooner had the citizens of Alexandria, who are 
Federal to a man, received the intelligence by the mail 
last night, than they determined to devote this day to 
festivity. But their exhilaration was greatly increased, 
and a much keener zest given to their enjoyment, by the 
arrival of an Express, two hours before day, with the 
news that the Convention of New Hampshire had, on the 
21st instant, acceded to the new Confederacy hy ?i majority 
of eleven voices — that is to say, fifty-seven to forty-six. 
* * * From the local situation, as well as the other cir- 
cumstances of North Carolina, I should be truly aston- 
ished if that State should withdraw itself from the Union. 
On the contrary, I flatter myself with a confident expecta- 

* Washington'' s Wi-itings, vol. ix, page 278. 
T Washmy ton's Writings, vol. ix, pp. 389, 390. 




s^'Ua, [j'£i 0:s '>s:^£32nrir.fii-:i' 




Col. IV.] MOTLEY AND WASHINGTON AT ISSUE. 157 

tion that more salutary counsels will certainly prevail. 
At present there is more doubt how the question will be 
immediately disposed of in New York; for it seems to 
be understood that there is a majority in the Convention 
opposed to the adoption of the new Federal system." 

In General Washington's Speech to Congress, on the 
8th of January, 1790, he spoke of the adoption of the 
Constitution by North Carolina, as " the recent accession 
of that State to the Constitution." The Senate, in their 
reply to his Speech, use the same w^ord.* 

But why continue these extracts ? Are they not quite 
Bufiicient to show that General Washington — he who 
stood at the head of that band of patriots who framed 
the Constitution for a more perfect Union between the 
States — entertained different ideas of the nature of the 
action of the States upon it from those of Mr. Motley ? 
He says the States acceded to it. Mr. Motley says they 
did not. There the matter may rest, upon that point. 
But these letters also throw quite a flood of light, as I 
said, upon the true meaning of the words, "a Consolida- 
tion of the Union," which we have just been speaking of. 
They show that Washington clearly understood the new 
system to be a Federal system, as the old one was. That 
there was no change of the locus of ultimate absolute 
Sovereignty under it. That the Union, which was per- 
fected and consolidated, was to be still a Union of States, 
each Sovereign as before, and not a Union of the entire 
people of the whole country, as Mr. Motley contends. 
Washington emphatically styles it, " the new Confed- 
eracy" — "the new Federal System." Mr. Motley says, 
that the present Government is no Confederacy, that 
"we had already enough of a Confederacy." Here 

* Annals of Congress, vol. i, pj). 932-93.5. 



158 CONSTITUTIONAL YIEW OF THE AVAR [Vol.1. 

again, he is directly at issue with Washington. Wash- 
ington speaks of the new system, as of the okl, and styles 
it " the new Confederacy." Here, again, I will leave 
the issue between Mr. Motley and General Washington. 

Prof. Norton'. Mr. Stephens, without wishing to 
Interrupt you, I should like to ask you a question just 
here. 

Mr. Stephens. It will not interrupt me at all. I am 
ready to give my views at any time upon any point ; 
and there is no better time than when the point is sug- 
gested to the mind in the course of investigation. The 
object of our inquiry is the nature of the Government of 
the United States — whether it be the Government of one 
people as a Nation, or whether it be Federal — that is, a 
Government of States. Wliat is it you would ask ? 

Prof. Norton. Well, then, I should like to know if 
it was not generally thought at the time that the con- 
solidation of the Union, mentioned in the letter of the 
Convention to Congress, would merge the Sovereignty 
of all the States into one ? Was it not because of this 
general belief that Yates and Lansing, of New York, and 
Luther Martin, of Maryland, quit the Convention ? and 
was not this the reason tha.t Governor Randolph and 
Mr. Mason, from Virginia, refused to vote for or sigu 
the Constitution, and that Patrick Henry exerted all the 
powers of his eloquence against its adoption by the State 
of Virginia ? I have alwa3's so understood it. Where I 
got the impression I do not know. But was not this the 
case ? 

Mr. Stephens. There was, as you say, strong oppo- 
sition to the Constitution upon the grounds you state. 
Mr. Lansing and Mr. Yates, from New York, did quit 
the Convention because of their dissatisfaction with its 
proceedings. So did Luther Martin. Mr. Mason, of 



Col. IV.] ARGUMENTS AGAINST CONSTITUTION. I59 

Virginia, and Governor Randolph, of Virginia, both re- 
fused to vote for it, and both refused to sign it; as also 
did Mr. Gerry, from Massachusetts. But they all acted 
from different motives, and assigned different reasons lor 
their conduct. 

Lansing and Yates quit the Convention because the^^ 
were for an equality of votes on the part of the States 
in both Houses of Congress. Yates had agreed to the 
adjustment proposed by the fii'st grand Committee of 
Conference, as we have seen. That report met with so 
little favor, was so violently denounced by Mr. Madison 
and others, that he immediately left, supposing it would 
not be adopted. His colleague loft with him.''' 

Other equally strong State Sovereignty and State 
Plights men remained ; and, by the final action of the Con- 
vention, an equality of votes in the Senate was secured 
to the States, as we have seen. They were perfectly 
satisfied that the Federal system was still retained by 
this adjustment. 

Luther Martin was unyielding upon the point of 
equality of suffrage on the part of the States in both 
Houses of Congress. Indeed he was unalterably opposed 
to many of the new and additional powers delegated by 
the Constitution. He was opposed to the Executive and 
Judiciary Departments, as constituted, and to the pro- 
hibitions on the States against emitting Bills of Credit or 
passing laws impairing the obligations of contracts. He 
thought the Government, notwithstanding the opinion of 
its friends to the contrary, would end in despotism, and 
so warned his countrymen, in eloquence of the highest 
order,-|* * 

Mr. Mason and Mr. Gerry opposed several features m 

* EllioPs Dchntes, vol. i, p. 470. 

t ElliuVti Dihates^i vol. i, pp. 344, 389. 



160 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

the new plan and thought it departed too far from a 
strictly Federal alliance.''' 

Governor Randolph, on the other hand, opposed the 
new plan and refused to sign it, because, in his judgment, 
it did not depart from the Federal system. 

Mr. Curtis says, that Governor Randolph thought the 
Constitution was " a system containing far greater re- 
straints upon the powers of the States than he believed 
expedient or safe," etc.f This is certainly a mistake. 
Just the contrary is the fact. Governor Randolph, in 
assigning his reasons for not voting for the Constitution 
and withholding his signature from it, in a letter to the 
Speaker of the House of Representatives of Virginia, says, 
amongst other things : 

"It follows, too, that the General Government ought 
to be the supreme arbiter for adjusting every contention 
among the States. In all their connections, therefore, 
with each other, and particularly in commerce, which 
will probably create the greatest discord, it ought to hold 
the reins." 

Governor Randolph was opposed to many features of 
the Constitution, such as the Executive department. 
The whole was summed up in this. 

" But, now, sir, permit me to declare, that in my 
humble judgment, the powers by which alone the bless- 
ings of a General Government can be accomplished, 
cannot be interwoven in the Confederation, without a 
change in its very essence, or, in other words, that the 
Confederation must be thrown aside."J 

This shows that Governor Randolph did not consider 
that there was' a general merger of the Sovereignty of 

* EllioVs Debates, vol. i, p. 492. 

t CuTtis''s History of the Constitution^ vol. i, p. 481. 

X EllioVs Debates, vol. i, p. 4SG. 



Col. IV.] ARGUMENTS AGAINST CONSTITUTION. 161 

all the States in tlie Union, which the Convention had 
consolidated, as we have seen. It clearly shows that, in 
his opinion, the Federative system was still retahied in 
the new Constitution, as it existed under the old. lie 
had put forth the utmost of his strength in the Conven- 
tion, for what he called a National Government. One 
based upon the abandonment of the Federal S37stem. 
His views were embodied in his plan oi* Government, 
and in his Eesolution, which proposed to give the 
power to the General Government to judge as between 
it and the States of infractions of the Constitution, 
which, we have seen, was negatived, and Martin's EesO' 
lution agreed to instead. Tlie essence of Confederation 
was abandoned in his plan; but his plan, in thi.'^ 
particular, was not adopted. The new Constitution 
continued upon the same Federative basis, and simply 
sought to make the Union upon that basis more perfect. 
At this Governor Randolph was disappointed and cha- 
grined — hence his lamentations and opposition. He 
was elected to the Convention, in Virginia, to which the 
Constitution was submitted, pledged to go against its 
ratification, mainly for this very reason ; but when he 
found that there was no hope, whatever, of getting Vir- 
ginia and the other States to adopt such a National 
Government as he wanted, or to depart in the slightest 
degree from the essence of the Federative system, he 
then ceased his opposition to the Constitution, as it was, 
and voted for its ratification. 

But still there was a very general and strong oppo- 
sition, throughout all the States, upon the grounds you 
state. It was urged by many, '' That the Union, upon 
the Federal basis, was proposed to be abandoned, and a 
new Union to be formed by a consolidation of the sepa- 
rate Sovereignties of the States." In the glowing lan- 
11 



162 CONSTITUTIONAL VIEW OF THE WAR. [Vol. L 

guage of the day it was asserted " That a Government. 
so organized, and absorbing all the powers of the States, 
would produce from their ruins one consolidated Govern- 
ment, founded upon the destruction of the several Go- 
vernments of the States." " The powers of Congress, 
under the Constitution, are complete and unlimited over 
the purse and the sword, and are perfectly independent 
of and supreme over the State Governments, whose 
intervention, on these great points, is utterly destroyed. 
By virtue of the power of taxation Congress may com- 
mand the whole or any part of the properties of the 
people. They may impose what imposts upon Com- 
merce, they may impose what land taxes, and taxes, 
excises, and duties on all instruments, etc., to any ex- 
tent they please. When the spirit of the people shall 
be gradually broken, when the National Government 
shall be firmly established, and when a numerous stand- 
ing army shall render opposition vain, the Congress 
may complete the system of Despotism in renouncing all 
dependence on the people by continuing themselves," 
and successors in power forever.* 

Patrick Henry did head this opposition with all his 
might in the Convention of Virginia. His grounds were 
various. He saw but little in any of its features that he 
liked. The Executive Department, in his judgment, 
^^ squinted towards Monarchy." His chief objection to 
it, however, was the want of a Bill of Rights, and be- 
cause it was not expressly stated on the face of the Con- 
stitution that the Sovereignty of the States was retained 
or reserved, as it had been in the Articles of Confedera- 
tion. It was in vain that he was told, by many as 
strongly in favor of State Sovereignty as he could be, 

* Story on ike ConstitHtion^ vol. i, pp. '272, 273. 



Col. IV.] ARGUMENTS AGAINST CONSTITUTION. 163 

that the whole system, upon its face, was one of dele- 
gated powers, and that none could be claimed, or exer- 
cised, except those delegated. That, as a matter of 
course, all which were not delegated were retained aurl 
reserved, — that Sovereignty, not being expressly parted 
with, still remained with the States. He, however, 
thought that what had been aimed at, and so assiduously 
attempted by the Nationals in the Convention, would be 
ultimately attained by them by implication and con- 
struction, if the Constitution should be adopted and put 
in operation without numerous amendments which lie 
proposed. With these amendments he declared his 
willingness to agree to the Constitution, notwithstanding 
his strong objections to various other features in the 
new organization. The principles of most of these 
amendments, proposed by him, were afterwards adopted. 
He was, then, far advanced in years, and though his 
opposition to the Constitution, after the adoption of the 
amendments, ''abated in a measure, yet he remained 
fearful, to the end of his life, that the final result would 
be the destruction of the rights of the Sovereignty of 
the States."* 

With unsurpassed eloquence, Patrick Henry possessed 
one of those wonderful minds which, by a sort of instinct 
or supernatural faculty, scents the approaches of power, 
even in the distance. This instinct, or far-seeing super- 
human endowment, prompted him to sound the alarm 
when the Constitution was at first presented to him. 

This is all true, but it is also true that his opposition, 
and that of all others at the time, sprung rather from 
apprehensions of evils that would result from constructions 
that would be put upon the Constitution, than from any 



Patrick Ileury. New American Encyclopedia. 



16-i CONSTITUTIONAL VIEW OP THE WAR [Yol. I. 

thing that appeared upon its face, or from powers under 
it chximed by its framers or advocates. Power, it was 
said by the opponents of the Constitution, was ever in- 
sidious in its approaches, and the lines between the 
Sovereign powers delegated in the Constitution to the 
States jointly, to be exercised by them jointly, and those 
retained to the several States, were not drawn with suffi- 
cient clearness and distinctness. The whole opposition 
was argumentative. The reply, on all hands, even by 
those who had contended in the Convention for an aban- 
donment of the Federal system, was that this system had 
not been abandoned in the jDlan proposed — that enlarged 
powers had been delegated and new machinery for the 
exercise of those powers had been introduced, but no 
change in the nature or character of the Government. 
This, we have just seen, was Washington's position. His 
name was a host in itself. It was also the position of 
Hamilton, of King, of Wilson, of Madison, of Morris, of 
Eandolph, and all the Nationals of the Convention, as we 
shall see. What was argued would be the legitimate 
tendency and ultimate njsults of a Government so organ- 
ized was strenuously denied by the friends and advocates 
of the Constitution. Tliis is abundantly clear froiTx the 
history of the times. iS^ot a supporter or defender of t)ie 
Constitution advocated it upon the grounds that the Sov- 
ereignty of the States was parted with under it. So 
thoroughly Federal was the Constitution admitted to be 
l)y its advocates everywhere that they universally took 
to themselves the name of Federalists. Washington, we 
have just seen, said that the people of Alexandria "^were 
Federal to a man ;" that is they were all for the Constitu- 
tion, believing and understanding it to be Federal in its 
nature and character. That series of Articles, eighty-five 
in number, which have become historic, written by Hamil- 



Col. lY.] CONSIDERED FEDERAL EVERYWHERE. 165 

ton, Madison, anclJay (all national before), urging upon the 
people reasons for adopting the Constitution, were styled 
"the Federalist." The Constitution was universally 
called the "Federal Constitution." The seat of Govern- 
ment was to be known as "The Federal City." So 
Btrongly and deeply impressed was this idea and under- 
standing upon the minds of the people that it assumed 
solid embodiment in outward forms, representations, and 
symbols. In Boston, after the ratification of the Consti- 
tution by Massachusetts, "there issued from the gates of 
Faneuil Hall an imposing procession of five thousand 
citizens, embracing all the trades of the town and its 
neighborhood, each with its appropriate decorations, 
emblems and mottoes. In the centre of this long pageant, 
to mark the relation of every thing around it to maritime 
commerce, and the relation of all to the new Government, 
was borne the Ship 'Federal Constitution,' with full 
colors flying and attended by the merchants, captains 
and seamen of the Port." " This was the first of a series 
of similar pageants which took place in the other princi- 
pal cities of the Union in favor of the ratification of the 
Constitution."* 

In Baltimore they had a ball, an illumination, and a 
grand procession of trades. In this procession was borne 
a miniature ship, " The Federalist."! 

" The ratification of Virginia took place on the 2r5th 
of June. The news of this event was received in Pliihir 
delphia on the 2d of July. The press of the city was 
at once filled with rejoitdngs over the action of Virginia. 
She was the tenth pillar in the Temple of Liberty 
She was Virginia — the oldest and foremost of the 
gfd.tes — land of statesmen, whose Revolutionary services 

* Crirtis^s History of the Constitution, vol. ii, p. 540. 
t Curtis''s History of the Constitution, vol. ii, j). 543. 



166 COXSTITUTIONAL VIEW OF THE WAR. [Voi. 1 

were household words in all America — birthplace and 
liome of Washington! We need not wonder, when she 
had come so tardily, so cautiously into the support of the 
Constitution, that men should have hailed her accession 
with enthusiasm ! The people of Philadelphia had been 
some time preparing a public demonstration in honor of 
the adoption of the Constitution by nine States. Now 
that Virginia was added to the number, they determined 
that all possible magnificence and splendor should be 
given to this celebration, and they chose for it the 
anniversary of the National Independence. 

"A taste for allegory appears to have been quite preva- 
lent among the people of the United States at this period. 
Accordingly, the Philadelphia Procession of July 4, 
1788, was filled with elaborate and emblematical repre- 
Bentations. It was a long pageant of banners of trades' 
and devices. A decorated car bore the Constitution, 
framed as a banner and hung upon a staff. Then 
another decorated car carried the American Flag. Then 
followed the Judges, in their robes, and all the public 
bodies, preceding a grand Federal Edifice, whicli was 
carried by a carriage drawn by ten horses. Oa the 
floor of this edifice were in chairs ten gentlemen repre- 
senting the citizens of the United States at large, to whom 
the Federal Constitution had been committed be fore its 
ratification. When it arrived at 'Union Green/ tlieij 
gave up their seats to ten others, representing ten States, 
which had ratified the instrument."* 

What force was there, in this stage representation, to 
the popular mind of the process through which the Con- 
stitution passed in its ratification ? The first ten gentle- 
men, representing the citizens of all the ten State? at 



* Curtis''s IJis. Con., vol. ii, p. 543. 



Col. it.] THE WORD FEDERAL DEFINED. 167 

large, each acting for themselves, in their several Sover- 
eign capacities, after having given it their several sanc- 
tion, then turning it over to ten others, representing the 
ten States for whom it had been so ordained and estab- 
lished, for them to hold, keep, preserve, and maintain, 
not ave)' them, but between them, and over the Govern- 
ment instituted by it ! 

These demonstrations, devices, mottoes, and symbols, 
clearly show how the great mass of the people, in all the 
States, understood the new Constitution. It was nothing 
but a more perfect bond of Union between States. Fede- 
ral was the watchword of the day in Boston, New York, 
Philadelphia, Baltimore, Richmond, and Charleston. It 
was the grand symbolized idea throughout the whole 
length and breadth of the land. There can be no doubt 
that the people thought they were adopting a Federal 
Constitution — forming a Federal Union. 

Now, then, what is the meaning of this word Federal, 
which entered so deeply into the thoughts, the hearts, and 
understandings of the people at that day. Here words 
are things ! Dr. Johnson, the highest authority of that 
day, in his Dictionary, thus defines the word : — Federal — 
(Foedus, Lai.) relating to a League or Contract. Fed- 
erate, he defines [Federatus, Lat.) leagued, joined in a 
Confederacy. 

The great American lexicographer, Noah Webster, 
says of this word ^'■Federal,'' that it is derived from the 
Latin word "Foedus,'" which means a League. A League 
he defines to be " an Alliance or Confederacy between 
Princes or States for their mutual aid or defence." And, 
in defining the meaning of the word Federal, he uses 
tnis language : " Consisting in a Compact between States 
or Nations ; founded on alliance by contract or mutual 
agreement ; as, a Fed.n^al Government, such as that of tlk^ 
United States." 



1.38 CONSTITUTIONAL VIEW OF THE WAR. [Tol. I 

Dr. Worcester, in his new Dictionary, another standard 
\York with philologers of the first rank, says, of tliis word 
" Federal;' that it is from the Latin " Foechis" " a Com- 
pact." He defines it thus : " 1. Kelating to a League Ox 
Compact;" etc. " 2. EeLating to, or joined in, a Confede- 
racy, as Communities or States ; Confederate ; — particu- 
larly, belonging to the Union, or the United States." 

Federal, from its very origin and derivation, therefore, 
has no meaning, and can have none, dissociated from Com- 
pact or Agreement of some sort, and it is seldom ever 
used to qualify any Compacts or Agreements except those 
between States or Nations. So that Federal and Con- 
federate mean substantially the same thing. When 
applied to States they both imply and import a Compact 
between States. Washington, in one of his letters, which 
I have just read, spoke of the new Government as "a 
Confederacy." In another, to Sir Edward Newenham, 
dated the 20th July, 1788, he speaks of the new Govern- 
ment then ratified by enough States to carry it into efiect 
as a " Confederated Government."* In his response to 
the reply of the Senate to his first speech to Congress after 
the new Government was organized, in 1789, he expressed 
his happiness in the conviction that "the Senate would 
at all times co-operate in every measure which may tend 
to promote the welfare of this Confederated RepuhHcr-\ 
These are the terms by which he characterized "the 
Union," after' the present Constitution Avas formed and 
after it was in operation. There is no difference between 
the words Federal and Confederated as thus used and 
applied. We see that Washington used tliem both, at 
different times, to signify the same thing, that is, the 
Union of the American States under the Constitution. 

* Washiniiton''s Writings, vol. ix, p. :)98. 
t Aniud' )f Conijress, vol. i, p. o8. 



Col. IV.] WHAT A FEDERAL REPUBLIC IS. 169 

It being universdlly admitted, then, b}^ the advocates of 
the Constitution at the time of its adoption, that it was 
Federal in its character, and that the Government under 
it would be a Confederated or Federal Republic, which 
means the same thing, let us see what is the nature and 
very essence of all such Governments. Dropping Die 
tionaries, let us go to writers upon the Laws of Nations. 
Here is Montesquieu. In Book ix, chap. 1, he speaks 
first of Republics generally. These may exist either 
under Democratic or Aristocratic Constitutions. 

" If a Republic," a single Republic, he means, " is small, 
it is destroyed by a foreign force; if it be large, it is 
ruined by an internal imperfection. * ♦ ♦ * * 

" It is, therefore, very probable, that mankind would 
have been at length obliged to live constantly under the 
Government of a single person, had they not contrived a 
kind of Constitution that has all the internal advantages 
of a Republican, together with the external force of a 
Monarchical Government. I mean a Confederate Re- 
public. 

" This form of Government is a Convention, by which 
several small States agree to become members of a larger 
one which they intend to form. It is a kind of assem- 
blage of societies, that constitute a new one, capable of 
mcreasing by means of new associations, till they arrive 
to such a degree of power, as to be able to provide for 
the security of the united body. ^: * * * 

" The State" (that is the State formed by the Con- 
federation) " may be destroyed on one side, and not on 
tlie other; the Confederacy may be dissolved, and the 
Confederates preserve their Sovereignty. 

" As this Government is composed of petty Republics, 
it enjoys the internal happiness of each ; and with respect 
to its external situation, it is possessed, by means of tlie 
Qssociation, of all the advantages of large monarchies." 



170 CONSTITUTIONAL VHEW OF THE WAR. [Tol. I 

This, by the highest authority, is the form and nature 
of all Federal or Confederated Republics. The Govern- 
ment of the United States, in the judgment of Washing- 
ton, belongs to that class. All the States of the Union 
were small Republics within themselves. By entering the 
Union for foreign and inter State purposes, they did not, 
therefore, according to Montesquieu, forfeit or part with 
their separate sovereignty. On the same subject, Vattel, 
another writer, universally admitted to be authority of 
high order, says : 

"Several Sovereign and Independent States may unite 
themselves together by a perpetual Confederacy, without 
ceasing to be, each individually, a perfect State. They will 
together constitute a Federal Republic; their joint delib- 
erations will not impair the Sovereignty of each member, 
though they may, in certain respects, put some restraint 
on the exercise of it in virtue of voluntary engagements."'^ 
That, I maintain, was exactly what the States of our 
Union did, by the adoption of the Constitution. 

I am, however, anticipating a little. We have not yet 
examined the new and additional powers delegated in 
the Constitution to see if they, by their own force and 
proper effect, of necessity changed the character of the 
Union before existing, nor have we yet examined into 
the acts of the States upon that measure itself. I have 
been drawn into what I have thus said rather in advance, 
in answer to your question touching the general opinion 
at the time, that the new Government was to be a consoli- 
dation of the Sovereignty of the States. This, I think, is 
quite enough to satisfy you that whatever appreliensions 
were indulged in by many as to results from abuse of 
powers, yet it was universally admitted by the advocates 
of the Constitution that a Federal Republic was to be 
established by it, and not a National Consolidation. 

* VatteVs Laws of Nations, p. 3. 



COLLOQUY V. 

lUE COMSTITTJTION OF THE rNITED STATES — ANALYSIS OF ITS PROVISIONS, 
MUTUAL COVENANTS, AND DELEGATIONS OP POWER, AS IN THE ARTICLES 
OP CONFEDERATION. 

Mr. Stephens. Let us now look into the Constitution 
itself,'^' and see the nature of the Government instituted by 
it, so far as appears from the words, and the terms used 
in it ; — keeping closely in mind all the antecedent facts — 
these are mainly — the separate Sovereignty of the States, 
by whose Delegates it was framed — the old law — the 
articles of Confederation — the evils complained of under 
them, and the remedies proposed. Keep in mind the 
purpose for which the Convention was called, the instruc- 
tions and powers, under which the Delegation from each 
State acted, as well as what the Convention said of their 
work, after it was done, in transmitting it to the States 
then in Congress assembled. Recollect, also, what Ells- 
worth and Sherman said of it, and what Washington, in 
his own name, said of it. All these matters should be 
kept constantly in view in our examination of the terms 
of the Constitution. With these facts, then, thoroughly 
impressed upon the mind, let us enter upon an exami- 
nation of the Instrument itself 

Upon an analysis of the entire provisions of the 
Constitution, from the beginning to the end, similar to 
the analysis made of the Articles of Confederation, we 
gee that the whole may be divided and arranged : 

* See Appendix C. 

171 



172 CONSTITUTIONAL VIEW OP THE WAR. [Vol. L 

First, into mutual Covenants and Agreements between 
the States, and 

Secondly, the delegation of specific powers, by the States 
severally, to the States jointly, to be exercised by them 
jointly, in the mode and manner specifically set forth in 
tlie mutual Covenants, as stated. 

The mutual Covenants relate partly to the new organi- 
zation, and the general division of the exercise of the 
powers granted or delegated to the different dejjartments ; 
and partly to restrictions upon the several States, and 
duties or obligations assumed by them, just as under the 
former, or old Constitution. 

The Covenants of the First Class, for a clearer under- 
standing, by proper analysis, may be further subdivided 
under appropriate heads, and in classification arranged 
accordingly. Those relating to the new organization and 
division of powers being placed by themselves, in order, 
and tliose relating to the restraints upon the several States 
and the duties and obligations assumed by them as States, 
being, also, arranged by themselves, in like order. 

Now, then, upon opening the Constitution, at the head 
of it, we find the Preamble, of which we have spoken. 
That is in these words : 

" CONSTITUTION OF THE UNITED STATES OF AMERICA. 

" We the People of the United States, in order to form 
a more perfect Union, establish Justice, insure domestic 
Tranquillity, provide for the common defence, promote 
the general Welfare, and secure the Blessings of Liberty 
to ourselves and our Posterity, do ordain and establish 
this Constitution for the United States of America." 

From this, as has been shown, it clearly appears that 
it was the intention of those who framed what follows, 
that it was to be a Constitution for States, or, in other 



"V 



Col. Y.l ANALYSIS OF TITE CONSTITUTION. I73 

words, a Compact between States. No more on that 
point here. 

First, then, in our examination into the body and sul)- 
stance of the Instrument, let us arrange all the mutual 
Covenants or Agreements in their order, according to the 
plan of analysis as stated. 

Those relating to the new organizatior. and the ma- 
chinery of the Government, and the distribution of 
Powers, may be placed as follows: 

FIRST. — COVENANTS RELATING TO THE LEGISLATIVE 
DEPARTMENT. 

1st. "All Legislative Powers herein granted shall be 
vested in a Congress of the United States, which shall 
consist of a Senate and House of Representatives." 

2d. " The House of Representatives shall be composed 
of Members chosen every second Year by the People of 
the several States, and the Electors in each State shall 
hive the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature." 

3d. " No Person shall be a Representative who shall 
not have attained to the Age of twenty-five Years, and 
been seven Years a Citizen of the United States, and who 
shall not, when elected, be an Inhabitant of that State in 
which he shall be chosen." ^ 

4th. " Representatives and direct Taxes shall be appor- 
tioned among the several States which may be included 
within this Union, according to their respective Nunfbers, 
which shall be determined by adding to the whole Num- 
ber of free Persons, including those bound to Service for 
a Term of Years, and excluding Indians not taxed, three 
fifths of all other Persons. The actual Enumeration 
shall be made within three Years after the first Meetins; 
of the Congress of the United States, and within every 



174 CONSTITUTIONAL VIEW OF TITK WAR, [Yol. I. 

subsequent Term of ten Years, in such Manner as they 
shall by Law direct. The Number of Representatives 
shall not exceed one for every thirty Thousand, but each 
State shall have at Least one Representative; and until 
such enumeration shall be made, the State of New Hamp- 
shire shall be entitled to chuse three, Massachusetts 
eight, Rhode-Island and Proyidence Plantations one, Con- 
necticut five, New- York six, New Jersey four, Penns}^- 
vania eight, Delaware one, Maryland six, Virginia ten. 
North Carolina five, South Carolina five, and Georgia 
three." 

5th. " When vacancies happen in the Representation 
from any State, the Executive Authority thereof shall 
issue Writs of Election to fill such Vacancies." 

6th. " The House of Representatives shall chuse their 
Speaker and other Officers ; and shall have the sole Power 
of Impeachment." 

7th. " The Senate of the LTnited States shall be com- 
posed of two Senators from each State, chosen by the 
Legislature thereof, for six Years ; and each Senator shall 
have one Vote." 

8th. " Immediately after they shall be assembled in 
Consequence of the first Election, they shall be divided 
as equally as may be into three Classes. The Seats of 
the Senators of the first Class shall be vacated at the Ex- 
piration of the second Year, of the second Class at the 
Expiration of the fourth Year, and of the third Class at 
the Expiration of the sixth Year, so that one third may 
be chosen every second Year ; and if Vacancies happen by 
Resignation, or otherwise, during the Recess of the Legis- 
lature of any State, the Executive thereof may make 
temporary Appointments until the next Meeting of the 
Legislature, which shall then fill such Vacancies." 

9th. '' No Person shall be a Senator who shall not have 



Col. V.J ANALYSIS OF THE CONSTITUTION. 175 

attained to the Age of thirty Years, and been nine Years a 
Citizen of the United States, and who shall not, when 
elected, be an Inhabitant of that State for which he shall 
be chosen." 

10th. '' The Vice President of the United States shall 
be President of the Senate, but shall have no Vote, unless 
they be equally divided." 

11th. "The Senate shall chuse their other Officers, and 
also a President pro tempore, in the Absence of the Vice 
President, or when he shall exercise the Office of Piesi- 
dent of the United States." 

12th. '^The Senate shall have the sole Power to try all 
Impeachments. When sitting for that Purpose, they 
shall be on Oath or Affirmation. When the President 
of the United States is tried, the Chief Justice shall pre- 
side : And no Person shall be convicted without the Con- 
currence of two thirds of the Members present." 

13th. "Judgment in Cases of Impeachment shall not 
extend further than to removal from Office, and Disquali- 
fication to hold and enjoy any Office of honour. Trust or 
Profit under the United States: but the Party convicted 
shall nevertheless be liable and subject to Indictment, 
Trial, Judgment and Punishment, according to Law." 

14th. " The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall be pre- 
scribed in each State by the Legislature thereof; but the 
Congress may at any time by Law make or alter such 
Regulations, except as to the place of chusing Senators." 

15th. " The Congress shall assemble at least once in 
every Year, and such Meeting shall be on the first Mon- 
day in December, unless they shall by Law appoint a 
different Day." 

16th. '' Each House shall be the Judge of the Elections, 
Returns and Qualifications of its own Members, and a 



176 CONSTITUTIONAL YIEW OF THE WAR. [Vol. I. 

Majority of each shall constitute a Quorum to do Busi- 
ness; but a smaller Number may adjourn from day to 
day, and may be authorized to compel the attendance of 
absent Members, in such Manner, and under such Penal- 
ties as each House may provide." 

17th. ''Each House may determine the Rules of its 
Proceedings, punish its Members for disorderly Behaviour, 
and, with the Concurrence of two thirds, expel a Member." 

18th. "Each House shall keep a Journal of its Pro- 
ceedings, and from time to time publish the same, except- 
ing such Parts as may in their Judgment require Secrecy; 
and the Yeas and Nays of the Members of either House 
on any question shall, at the Desire of one fifth of those 
Present, be entered on the Journal." 

19th. " Neither House, during the Session of Con- 
gress, shall, without the Consent of the other, adjourn 
for more than three days, nor to any other Place than 
that in which the two Houses shall be sitting." 

20th. " The Senators and Representatives shall receive 
a Compensation for their Services, to be ascertained by 
Law, and paid out of the Treasury of the United States. 
They shall in all Cases, except Treason, Felony and 
Breach of the Peace, be privileged from Arrest during 
their Attendance at the Session of their respective 
Plouses, and in f2:oinsj; to and returninsi; from the same ; 
and for isiiy Speech or Debate in either House, they shall 
not be questioned in any other Place," 

21st. " No Senator or Representative shall, during 
the Time for which he was elected, be appointed to any 
civil Office under the Authority of the United States, 
which shall have been created, or the Emoluments 
whereof shall have been encreased during such time; 
and no Person holding any Office under the United 
States, shall be a Memljer of either House during his 
Continuance in Office." 



Col. v.] ANALYSTS OF THE CONSTITUTION. I77 

22(1. " All Bills for raising Revenue shall originate in 
the House of Representatives ; but the Senate may pro- 
pose or concur with Amendments as on other Bills." 

23d. " Every Bill which shall have passed the House of 
Representatives and the Senate, shall, before it become a 
Law, be presented to the President of the United States ; 
If he approve he shall sign it, but if not he shall return 
it, with his Objections to that House in which it shall 
have originated, who shall enter the Objections at large 
on their Journal, and proceed to reconsider it. If after 
such Reconsideration two thirds of that House shall 
agree to pass the Bill, it shall be sent, together with the 
Objections, to the other House, by which it shall likewise 
be reconsidered, and if approved by two thirds of that 
House, it shall become a Law. But in all such Cases 
the Votes of both Houses shall be determined by Yeas 
and Nays, and the Names of the Persons voting for and 
aQ;ainst the Bill shall be entered on the Journal of each 
House respectively. If any Bill shall not be returned 
by the President within ten Days (vSundays excepted) 
after it shall have been presented to him, the Same shall 
be a law, in like Manner as if he had signed it, unless 
the Congress by their Adjournment prevent its Return, 
in which Case it shall not be a Law." 

24tli. " Every Order, Resolution, or Vote to which the 
Concurrence of the Senate and House of Representatives 
may be necessary (except on a question of Adjourn- 
ment) shall be presented to the President of the United 
States ; and before the same shall take effect, shall be 
approved by him, or being disapproved by him, shall 
be repassed by two thirds of the Senate and House of 
Representatives, according to the Rules and Limitations 
prescribed in the Case of a Bill." 
12 



178 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

SECOND. — COVENANTS RELATING TO THE EXECUTIVE 
DEPARTMENT. 

1st. ^' The Executive Power shall be vested in a Pre- 
sident of the United States of America. He shall hold 
his Office during the Term of four Years, and, together 
with the Vice-President, chosen for the same Term, be 
elected, as follows :" 

2d. " Each State shall appoint, in such Manner as the 
Legislature thereof may direct, a Number of Electors, 
equal to the whole Number of Senators and Representa- 
tives to which the State may be entitled in the Congress: 
but no Senator or Representative, or Person holding an 
Office of Trust or Profit under the United States, shall be 
appointed an Elector." 

[* The Electors shall meet in their respective States, and vote by 
Ballot for two Persons, of whom one at least shall not be an Inhabitant 
of the same State with themselves. And they shall make a List of all 
the Persons voted for, and of the Number of Votes for each ; which List 
they shall sign and certify, and transmit sealed to the Seat of the Govern- 
ment of the United States, directed to the President of the Senate. The 
President of the Senate shall, in the Presence of the Senate and House 
of Representatives, open all the Certificates, and the Yotes shall then be 
counted. The Person having the greatest Number of Votes shall be the 
President, if such Number be a Majority of the whole Numljer of Elec- 
tors appointed ; and if there be more than one who have such Majority, 
and have an equal Number of Votes, then the House of Representatives 
shall immediately chuse by Ballot one of them for President ; and if no 
Person have a Majority, then from the five highest on the List the said 
House shall in like Manner chuse the President. But in chusing the 
President, the Votes shall be taken by States, the Representation from 
each State having one Vote ; A Quorum for this Purpose shall consist 
of a Member or Members from two thirds of the States, and a Majority 
of all the States shall be necessary to a Choice. In every Case, after the 
Choice of the President, the Person having the greatest Number of Votes 
of the Electors shall be the Vice President. But if 'there should remain 
two or more who have equal Votes, the Senate shall chuse from them by 
Ballot th3 Vice President.] 



* This clause within brackets has been superseded and aunuUed by the 
1 2th ainondment. 



COI.V.] ANALYSIS OF THE CONSTITUTION. 179 

3d. " The Congress may determine the Time of chasing 
the Electors, and the Day on which they shall give their 
Votes; which Day shall be the same throughout the 
United States." 

4th. " No Person except a natural born Citizen, or a 
Citizen of the United States, at the time of the Adoption 
of this Constitution, shall be eligible to the Office of Presi- 
dent ; neither shall any Person be eligible to that Office 
who shall not have attained to the Age of thirty five Years, 
and been fourteen Years a Resident within the United 
States." 

5th. '' In Case of the Eemoval of the President from 
Office, or of his Death, Resignation, or Inability to dis- 
charge the Powers and Duties of the said Office, the same 
shall devolve on the Vice President, and the Congress 
may by Law provide for the Case of Removal, Death, 
Resignation, or Inability, both of the President and Vice 
President, declaring w^hat Officer shall then act as Presi- 
dent, and such Officer shall act accordingly, until the 
Disability be removed, or a President shall be elected." 

6th. " The President shall, at stated Times, receive 
for his Services, a Compensation, which shall neither be 
encreased or diminished during the Period for which he 
shall have been elected, and he shall not receive within 
that Period any other Emolument from the United States, 
or any of them." 

7th. '' Before he enter on the Execution of his Office, 
he shall take the following Oath or Affirmation : — 

" ' I do solemnly swear (or affirm) that I will faithfully 
execute the Office of President of the United States, 
and will to the best of my Ability, preserve, protect 
and defend the Constitution of the United States.' " 

8th. "The President shall be Commander in Chief of 
the Army and Navy of the United States, and of the 



ISO CONSTITUTIONAL VIEW OF THE WAR. [Voi,. I 

Militia of the several States, when called into the actual 
Service of the United States; he may require the Opinion, 
hi writing, of the principal Officer in each of the execu- 
tive Departments, upon any Subject relating to the Duties 
of their respective Offices, and he shall have Power to 
grant Reprieves and Pardons for Offences against the 
United States, except in Cases of Impeachment." 

9th. " He shall have Power, by and with the Advice 
and Consent of the Senate, to make Treaties, provided 
two thirds of the Senators present concur ; and he shall 
nominate, and by and with the Advice and Consent of 
the Senate, shall appoint Ambassadors, other public Min- 
isters and Consuls, Judges of the supreme Court and all 
other Officers of the United States, whose Appointments 
are not herein otherwise provided for, and which shall be 
established by Law : but the Congress may by Law vest 
the Appointment of such inferior Officers, as they think 
proper, in the President alone, in the Courts of Law, or 
in the Heads of Departments." 

10th. ''The President shall have power to fdl up all 
Vacancies that may happen during the Recess of the 
Senate, by granting Conniiissions which shall expire at 
the End of their next Session." 

11th. ''He shall from time to time give to the Con- 
gress Information of the State of the Union, and recom- 
mend to their Consideration such Measures as he shall 
judge necessary and expedient; he may, on extraordi- 
nary Occasions, convene both Houses, or either of them, 
and in Case of Disagreement between them, with respect 
to the Time of Adjournment, he may adjourn them to 
such Time as he shall think proper; he shall receive 
Ambassadors and other public Ministers ; he shall take 
Care that the Laws be faithfully executed, and shall 
Commission all the officers of the United States." 



Col. v.] analysis OP THE CONSTITUTION. 181 

12tli. " The President, Vice President and all civil 
OiFicers of the United States, shall be removed from office 
on Impeachment for, and Conviction of. Treason, Bribery, 
or other high Crimes and Misdemeanors." 

THIRD. COVENANTS RELATING TO THE JUDICIAL DEPARTME'^T. 

1st. " The judicial Power of the United States, shall be 
\ ested in one supreme Court, and in such inferior Courts 
as the Congress may fi'om time ordain and establish. 
The Judges, both of the supreme and inferior Courts, 
shall hold their offices during good Behavior, and shall, at 
stated Times, receive for their Services, a Compensation, 
which shall not be diminished during their Continuance 
in Office." 

2d. " The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the 
Laws of the United States, and Treaties made, or which 
shall be made, under their Authority ; — to all Cases affect- 
ing Ambassadors, other public Ministers, and Consuls ; — 
to all Cases of admiralty and maritime Jurisdiction ; — to 
Controversies to which the United States shall be a Party ; — 
to Controversies between two or more States ; — between a 
State and Citizens of another State ; — between Citizens of 
different States, — between Citizens of the same State 
claiming Lands under Grants of different States, and be- 
tween a State, or the Citizens thereof, and foreign States, 
Citizens or subjects." 

3d. " In all Cases affecting Ambassadors, other public 
Ministers and Consuls, and those in which a State shall 
be Party, the supreme Court shall have original jurisdic- 
tion. In all the other Cases before mentioned, the su- 
preme Court shall have appellate Jurisdiction, both as to 
Law and Fact, with such Exceptions, and under such 
Regulations as the Congress shall make." 



182 CONSTITUTIONAL VIEW OF THE WAR. [Yol. 1, 

4 til. "The Trial of all Crimes, except in Cases of Im- 
peachment, shall be by Jurj^ ; and such Trial shall be 
held in the State where the said Crimes shall have been 
committed ; but when not committed within any State, 
the Trial shall be at such Place or Places as the Congress 
may by Law have directed." 

NOW THE COVENANTS OF THE SECOND CLASS IN ORDER. 

1st. "No State shall enter into any Treaty, Alliance, or 
Confederation; grant Letters of Marque and Reprisal; coin 
Money ; emit Bills of Credit ; make any Thing but gold 
and silver Coin a Tender in Payment of Debts ; pass any 
Bill of Attainder, ex post facto Law, or Law impairing 
the Obligation of Contracts, or grant any Title of Nobility." 

2d, " No State shall, without the consent of the Congress, 
lay any Imposts or Duties on Imports or Exports, except 
what may be absolutely necessary for executing it's in- 
spection Laws : and the net Produce of all Duties and 
Imposts, laid b}^ any State on Imports or Exports, shall 
be for the Use of the Treasury of the United States ; and 
all such Laws shall be subject to the Kevision and Con- 
troul of the Congress." 

3d. " No State shall, without the Consent of Congress, 
lay any Duty of Tonnage, keep Troops, or Ships of War 
in time of Peace, enter into any Agreement or Compact 
wdtli another State, or with a foreign Power, or engage 
in War, unless actually invaded, or in such imminent 
Danger as will not admit of Delay." 

4th. "Full Faith and Credit shall be given in each 
State tc the public Acts, Eecords, and judicial Proceed- 
ings of every other State. And the Congress may by 
general Laws prescribe the Manner in which sucL Acts, 
Records and Proceedings shall be proved, and the Efiect 
thereof." 



Coi, v.] ANx^LYSIS OF THE CONSTITUTION. 183 

5tli. " The Citizens of each State shall be entitled to 
all Privileijres and Immunities of Citizens in the several 
SUtes." 

6th. "A Person charged in any State with Treason, 
Felony, or other Crime, who shall tlee from Justice, and 
be found in another State, shall on demand of the execu- 
tive authority of the State from which he fled, be deliv- 
ered up, to be removed to the State having Jurisdiction 
of the Crime." 

7th. " No Person held to Service or Labour in one State, 
under the Laws thereof, escaping into another, shall, in 
Consequence of any Law or Regulation therein, be dis- 
charged from such Service or Labour, but shall be deliv- 
ered up on Claim of the Party to whom such Service or 
Labour may be due." 

8th. " All Debts contracted and Engagements entered 
into, before the Adoption of this Constitution, shall be as 
valid against the United States under this Constitution, 
as under the Confederation." 

9th. "This Constitution, and the Laws of the United 
States which shall be made in Pursuance thereof; and 
all Treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme Law 
of tlie Land; and the Judges in every State shall he 
bound thereby, any Thing in the Constitution or Laws 
of any State to the Contrary notwithstanding." 

10th. " The Senators and Representatives before men- 
tioned, and the Members of the several State Legislatures, 
and all executive and judicial Officers, both of the United 
States and of the several States, shall be bound by Oath 
or Affirmation, to support this Constitution ; but no reli- 
gious Test shall ever be required as a Qualification to any 
Office or public Trust under the United States." 
. 11th. "The United States shall guarantee to every 



184 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

State in this Union a Republican Form of Government, 
and sliall protect each of them against Invasion, and on 
Application of the Legislature, or of the Executive (when 
the Legislature cannot be convened) against domestic 
Violence." 

These are all the Covenants between the States, ar- 
ranged in order by analysis, as stated, except two, which 
may more properly be set forth, after we examine the enu- 
meration of the Powers delegated and the terms used in 
their delegation. 

These are as follows: First, specific grants of power; 
and secondly, certain limitations upon the Powers so 
granted or delegated. 

FIRST. — THE SPECIFIC POWERS DELEGATED. 

'' The Congress shall have power" 

1st. " To lay and collect Taxes, Duties, Imposts and 
Excises, to pay the Debts and provide for the common 
Defence and general Welfare of the United States; but 
all Duties, Imposts and Excises shall be uniform through- 
out the United States;" 

2d. " To borrow Money on the credit of the United 
States ;" 

3d. " To regulate Commerce with foreign Nations, and 
among the several States, and with the Indian Tribes ;" 

4th. " To establish an uniform Rule of Naturalization, 
and uniform Laws on the subject of Bankruptcies through- 
out the United States ;" 

5th. " To coin Money, regulate the Value thereof, and 
of foreign Coin, and fix the Standard of Weights and 
Measures ;" 

6th. " To provide for the Punishment of counterfeiting 
the Securities and current Coin of the United States ," 

7th. " To establish Post Offices and post Roads ;" 



Col. v.] analysis OF THE CONSTITUTION. 185 

8 til. " To promote the progress of Science and useful 
Arts, by securing for limited Times to Authors and In- 
^'entors the exclusive Right to their respective Writings 
and Discoveries ;" 

9th. "To constitute Tribunals inferior to the supreme 
Court ;" 

10th. " To define and punish Piracies and Felonies 
committed on the high Seas, and Ollences against the 
Law of Nations ; 

" Treason against the United States, shall consist only 
in levying War against them, or in adhering to their 
Enemies, giving them Aid and Comfort. No Person 
shall be convicted of Treason unless on the Testimony 
of two Witnesses to the same overt Act, or on Confession 
in open Court." 

11 til. " The Congress shall have Power to declare the 
Punishment of Treason, but no Attainder of Treason 
shall work Corruption of Blood, or Forfeiture except 
during the Life of the Person attainted," 

12th. "To declare War, grant Letters of Marque and 
Fteprisal, and make Rules concerning Captures on Land 
and Water;" 

13th. " To raise and support Armies, but no Appro- 
priation of Mone}^ to that Use shall be for a longer Term 
than two Years ;" 

14th. " To provide and maintain a Navy;" 

loth. "To make Rules for the Government and Reiru- 
lation of the land and naval Forces ;" 

16th. " To provide for calling forth the Militia to exe- 
cute the Laws of the Union, suppress Insurrections and 
repel Invasions ;" 

17th. "To provide for organizing, arming, and disci- 
plining, the Militia, and for governing such Part of them 
as may be employed in the Service of the United States, 



186 CONSTITUTIONAL VIEW OF TEE WAR. [Vol.1. 

reserving to the States respectively, the Appointment of 
the Officers, and the Authority of training the Militia 
according to the Discipline prescribed by Congress ;" 

18th. " To exercise exclusive Legislation in all Oases 
whatsoever, over such District (not exceeding ten Miles 
square) as may, by Oession of particular States, and the 
Acceptance of Oongress, become the Seat of the Govern- 
ment of the United States, and to exercise hke Authority 
over all Places purchased by the Oonsent of the Legisla- 
ture of the State in which the Same shall be for the Erec- 
tion of Forts, Magazines, Arsenals, Dock-Yards, and other 
needful buildings ; — And" 

19th. " To make all Laws which shall be necessary 
and proper for carrying into Execution the foregoing 
Powers, and all other Powers vested by this Oonstitution 
in the Government of the United States, or in any De- 
partment or Officer thereof." 

20th. " New States may be admitted by the Congress 
into this Union ; but no new State shall be formed or 
erected within the Jurisdiction of any other State ; nor 
any State be formed by the Junction of two or more 
States, or Parts of States, without the Consent of the 
Legislatures of the States concerned as well as of the 
Congress." 

21st. " The Congress shall have Power to dispose of 
and make all needful Rules and Regulations respecting 
the Territory or other Property belonging to the United 
States ; and nothing in this Constitution shall be so con- 
strued as to Prejudice any Claims of the United States, 
01 of any particular State." 

SECONDLY. LIMITATIONS ON THE POWERS DELEGATED. 

1st. " The Migration or Importation of such Persons 
as any of the States now existing shall think proper to 



Col. v.] ANALYSIS OF THE CONSTITUTION. 187 

admit, shall not be prohibited by the Congress prior to 
the Year one thousand eight hundred and eight, but a 
Tay or Duty may be imposed on such Importation, not 
exceeding: ten dollars for each Person." 

2d. "The Privilege of the Writ of Habeas Corpus 
shall not be suspended, unless when in Cases of Rebellion 
or Invasion the public Safet}' may require it." 

3d. " No Bill of Attainder or ex post facto La^Y shall 
be passed." 

4 th. " No Capitation, or other direct, Tax shall be 
laid, unless in Proportion to the Census or Enumeration 
herein before directed to be taken." 

5th. " No Tax or Duty shall be laid on Articles ex- 
ported from any State." 

6th. " No preference shall be given by any Regulation 
of Commerce or Revenue to the Ports of one State over 
those of another : nor shall Vessels bound to, or from, 
one State, be obliged to enter, clear, or pay Duties m 
another." 

7th. " No money shall be drawn from the Treasury, 
but in Consequence of Appropriations made by Law; and 
a regular Statement and Account of the Receipts and 
Expenditures of all public Money shall be published from 
time to time." 

8th. "No title of Nobility shall be granted by the 
United States : And no Person holding any Office of Profit 
or Trust under them, shall, without the Consent of the 
Congress, accept of any present, Emolument, Office, or 
Title; of any kind whatever, from any King, Prince, or 
foreign State." 

These are all the powers delegated, with their limita- 
tions. AYe come, now, in our classification and arrange- 
ment of the entire Constitution, to the two remain uiy 
stipulations, which belong properly to the Covenants 



188 CONSTITUTIONAL VIEW OF THE WAR. jVol. I. 

between the States, but which, in any general cLassifica- 
tion, may more properly be put at the conclusion of the 
whole. 

These are : 

1st. " The Congress, M^ienever two thirds of both 
Houses shall deem it necessary, shall propose Amend- 
ments to this Constitution, or, on the Application of the 
Legislatures of two thirds of the several States, shall call 
a Convention for proposing Amendments, which, in either 
Case, shall be valid to all Intents and Purposes, as Part 
of this Constitution, wdien ratified by the Legislatures of 
three fourths of' the several States, or by Conventions in 
three fourtlis thereof, as the one or the other Mode of 
Fvatification may be proposed by the Congress ; Provided 
that no Amendment, which may be made prior to the 
Year one thousand eight hundred and eight, shall in any 
Manner affect the first and fourth Clauses in the Ninth 
Section of the first Article ; and that no State, without 
its Consent, shall be deprived of its equal Sufirage in the 
Senate." 

2d. " The Ratification of the Conventions of nine States, 
shall be sufficient for the Establishment of this Constitu- 
tion between the States so ratifying the Same. 

" Done in Convention by the Unanimous Consent of 
the States present the Seventeenth day of September, 
in the Year of our Lord one thousand seven hundred and 
Eighty-seven, and of the Independence of the United 
States of America the Twelfth. 

"In Witness whereof Vfe have hereunto subscribed 
our Names. 

'^GEORGE WASHINGTON— 
^'Prebidt and Deputy from Virginia. 



Col. v.] ANALYSTS OF THE CONSTITUTION. 

NEW nAMrsniRE. 
John Langdon, Nicholas Gilman, 

MASSACHUSETTS. 

Nathaniel Gorhani, Rufus King, 

CONNECTICUT. 

Wm. Saml. .Johnson, Roger Sherman. 



189 



Alexander Hamilton. 

"Will: Livingston, 
■\Vm. Paterson, 



B. Franklin, 
Iloht. Morris, 
Thos : Fitzsimons, 
JaniL'S Wilson, 

Geo: Read, 
John Dickinson, 
Jaco : Broom, 

James M'llenry, 
Danl Carroll, 

John Blair, 

Wm. Blonnt, 
IIu. Williamson, 

J. Rutledge, 
Charles Pinckney, 

William Few, 

Atted : 



NEAV YORK. 
NEW JERSEY. 

David Brearley, 
Jona. Dayton. 

PENNSYLVANIA. 

Thomas Mifflin, 
Geo : Clymer, 
Jared Ingersoil, 
Gouv : Morris. 

DELAWARE, 

Gnnning Bedford, Jun'r, 
Pilchard ]5assctt. 

MARYLAND. 

Dan : of St. Thos. Jenifer. 

VIRGINIA. 

James Madison, Jr., 

NORTH CAROLINA. 

Ptich'd Dohbs Spaight. 

SOUTH CAROLINA. 

Charles Cotcsworth Pincknej , 
Pierce Butler. 

GEORGIA. 

Abr. Baldwin. 
WILLIAM JACKSON, Secretary -' 



We have thus gone through with the whole of the ori- 
ginal Constitution, as it, at first, came from the hands of 
the Convention; we have examined it from the begm- 
ning to the end— from the Preamble to the signatures 
of the Delegates. We see that the members of each 



190 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

Delegation signed it in behalf of the State re^Dresented 
by them. The subsequent amendments, we may, liere- 
after, examine. 

The articles, sections, and clauses, as arranged by the 
Committee on Style, have not been followed in this 
analysis. But every section, clause and word, are set 
forth in it, as the original stands engrossed in the 
Archives of State, at Washington.^' The order of their 
arrangement onl}^ is changed. This does not mar the 
sense, in the slightest particular, in a single instance, 
but gives a clearer conception, it appears to me, of the 
\vhole instrument, taken together; as all instruments, in 
writing, should be, to be thoroughly and correctly under- 
stood. Now, after scanning the whole, taken together, 
what section, clause, phrase or Avord, on the face of the 
Constitution itself, shows any intention, on the part of 
the framers, to merge the separate Sovereignty of all the 
States into one, under it; and, by its adoption, to estab- 
lish a National Government, instead of perfecting and 
continuing, under a new organization, with enlarged 
powers, the Federal Union, then existing between the 
States, and for the remedying of which, the Convention 
was called ? It was made, we see, by States. It was to 
be established, we see, not over, but between, the States 
ratifying it. 

Is not the leading idea, throughout the whole instru- 
ment, that the new Government was to be a Compact 
between States, as the old one was ? States pervade the 
whole instrument. The Senators are to be elected by 
the Legislatures of the several States. The House of 
Representatives is to be composed of members, chosen 
by the people of the several States ; and to be chosen by 



Edition nf the Constitution by Hickey. p. 31. 



Col. v.] constitution CONSIDERED. 191 

electors, possessing such qualifications as each State, for 
iti,eJf, may prescribe for the electors of tlie most numer- 
)us branch of its own State Legislature. Thus provid- 
ing that every member of the Legislative body should bo 
chosen, in the one branch, directly by the States, as 
such, and in the other branch, by constituencies, to be 
formed and controlled absolutely by the States, severally. 

'' Representatives and taxation shall be apportioned 
among the several States^ 

" Each State shall have, at least, one Representative" 
When vacancies happen "^ in any State,'"* etc. 

The Congress shall have power to regulate commerce 
with foreign nations, " and among the several States^ 
" The migration and importation of such persons as any 
of the States," etc. 

'' No preference shall be given," etc., " to the ports of 
one State over those of another," etc. " Nor shall vessels, 
bound to or from one State, be obliged to enter, clear, or 
pay duties in another." 

" No State shall enter into any treaty," etc. 

'' No State shall, without the consent of tlie Congress, 
lay any imposts," etc. 

'' No State shall," without the like consent of the Con- 
gress, ^' lay any duty of tonnage, keep troops or ships of 
war in time of peace, enter into any agreement or com- 
pact with another State, or with a foreign Power, or 
engage in war, unless actually invaded," etc. 

Nothing appears more prominent in the whole in- 
strument than States. The very first Article in tlic 
Constitution declares that all Legislative powers under it 
shall be vested in " a Congress of the United States^ The 
terra '' Congress of the United States " was familiar to all 
at that day. It was well known to mean " The United 
States in Congress assembled." Congress means a meet- 



1<J2 CONSTITUTIONAL VIEYf OF THE WAR. [Vol. I. 

iiig or an assemblage. A Congress of States means a 
Meeting or Assemblage of States. The title of Congress, 
under the Confederation, had been " The United States 
of America in Congress assembled." The same title is 
still retained. To this very day, the enacting clause of 
every law, passed by " the Congress," under the Constitu- 
tion, is in these words : — 

^' Be it enacted hij tlie Senate and House of Representa- 
tives of the United States of America in Congress assem- 
bled." 

Every law that has been passed, from the beginning, 
under this Constitution, as under the Articles of Con- 
federation, derives its sole authority, as its face shows, 
from States in Congress assembled ! 

The whole operation of the Government, from its first 
starting, depended upon the action of the States. The 
election of President and Vice President, from the first 
to the last, depended entirely upon the States, as States, 
and, also, the election of Senators. Nor can there be a 
House of Representatives in the Congress without the 
co-operation of the States ! The General Government, 
created by the instrument, has no authority, as appears 
from its face, to enter any State, or take jurisdiction over a 
foot of her soil, even for the erection of forts and arsenals, 
etc., except by her consent, first had and obtained by 
contract or purchase. This shows that the Right of 
Eminent Domain, the indisputable attribute and accom- 
paniment of Sovereignty, remained with the States, 
severally, even over such places as might thus pass, in fee, 
from them, or their citizens, to the United States, as in 
like purchases, in all cases whatsoever. 

What is there, then, in this whole instrument, that 
looks towards such a consolidation of the whole people of 
this country into one conmiunity or Nation, as Mr. Mot- 
ley contends, and as you maintain? 



Col. v.] constitution CONSIDERED. 193 

Judge Bynum. Does not what is said about Treason 
look that way? 

Mr. Stephens. Not at all ; if it be true that^the Con- 
stitution was a Compact between Sovereign States. That 
is the point in issue. All such inferences, as you refer 
to, depend upon this primary and essential fact, touching 
the nature and character of the Government. Nothing 
is cleai'er than that Sovereign States may agree, by Com- 
pact, between themselves, that certain acts of the citizens 
of each, against all jointly, shall be deemed and held to 
be criminal against them jointly, and punished by their 
joint authority. Such is the case, in this Constitution, 
as to counterfeiting the current coin and securities of the 
United States, and divers other offences. The granting 
of power to punish such offences against the joint author- 
ity of all, while the Compact lasts, does not, in the least, 
in itself, compromit the Sovereignty of each, or change 
the allegiance of her citizens; which, independently of 
the Compact, must, by acknowledgment, be admitted to 
be due to her Paramount authority. The Articles of 
Confederation delegated the power to punish piracy. 

So, it is perfectly consistent with the reserved Sover- 
eignty of each party to such a Compact, to agree among 
tliemselves that levying war upon all of them, or adher- 
ing to their enemies, giving them aid and comfort, by 
the citizens of any one of them, shall be considered 
Treason against all; inasmuch as such an act would, 
unquestionably, be Treason against the State, of which 
such persons are citizens, in the breach, which it 
would necessarily involve, of their allegiance, due to 
the Paramount authority of the State, in entering into 
such a Compact, which, by its very nature, is to be bind- 
ing upon each State, and all her citizens, as the Supreme 
law, so long as it may last. 

13 



194 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

It is perfectly competent for Sovereign States to 
make such an agreement, or compact, as this, without 
compromitting their Sovereignty, or changing, in the 
least degree, the ultimate, absolute allegiance of all their 
citizens, which, by the laws of Nations, is due to their 
Paramount authority. This is just what the Constitu- 
tion did on that subject, if it be a Compact between 
Sovereign States, and that is the point of our inquiry. 

In further illustration of the view I was presenting, to 
show that it is such a Compact, and that no such in- 
ference, as you would draw from the words about trea- 
son, is at all maintainable, I call your special attention to 
the fact that there is, in the Constitution, no Covenant, 
or Delegation of power to the Congress, to define, or pun- 
ish treason, generally, as all Sovereigns, without doubt, 
have power to do. That is left with the States, sev- 
erally, and a solemn Compact entered into, that all 
persons, charged with treason against any one of the 
States, fleeing into another State, shall, upon demand, 
etc., be given up, etc. This shows, clearly, that the 
general allegiance of the citizens of the several States 
was not intended to be transferred, by this clause of the 
Constitution, to the United States. Indeed, there is not 
a word about allegiance in the whole of it. 

Moreover, all that is said upon the subject, in this 
clause, is only an enlargement in one sense, and a re- 
striction in another, of powers under the Articles of 
Confederation. There is no change of principle in the 
nature of the Government, in this particular, in the new 
Constitution, from the old. 

Under the Articles of Confederation, the States, in 
Congress assembled, had power, as we have seen, to 
make " Rules for the Government of the land and naval 
forces," etc. By virtue of this clause they had power 



Cor., y.] CONSTITUTION CONSIDERED 195 

not only to punish, but to define what acts should con- 
stitute treason against the joint authority of all the 
States, when committed by any one in the land or naval 
forces. It was under this clause, doubtless, or under 
the Rules and Articles of War, established by virtue of 
It, that Arnold would have been executed, if he had not 
made his escape. But no one thought that, because Ar- 
nold, a. citizen of the State of Connecticut, was held and 
deemed to be guilty of treason against the United States, 
that, therefore, his allegiance, and the allegiance of all 
the people of Connecticut, and the allegiance of all 
the people of all the States, was necessarily, thereby, 
under the Confederation, transferred from the States, 
severally, to the United States. We have seen that the 
Supreme Court of the United States has decided the 
very reverse, or, that the allegiance of the citizens of the 
States, severally, during the Confederation, was due to 
their States respectively.* Hence it follows that it was 
perfectly consistent, with a full reservation of power 
to the States, severally, over the allegiance of their 
citizens, to enter into just such a Compact, as I main- 
tain this to be. This part of the Constitution, as T have 
said, is but an enlargement, in one sense, and a re- 
striction, in another, of powers delegated under the 
Articles of Confederation. It is enlarged, so as to em- 
brace all citizens of the States, respectively, whether in 
the land or naval forces or not; and restricted In this, 
that the offence, defined in the Constitution to be Treason 
ay-ainst the United States, shall consist, only, in levy- 
ing war against them, or in adhering to their enemies, 
giving them aid and comfort, with a limitation as to the 
extent of the punishment. A farther restriction i8 

* Ante, p. 76. 



196 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

that a person charged with treason, now, cannot be 
tried by Military Courts. The trial, in all cases, must 
be by the Civil Courts. The crime can only exist, when 
the act is committed by the citizens of any State, not 
only against her, but against all the other States with 
which she stands united by a solemn Compact. 

The Paramount Sovereignty of each State to com- 
mand the allegiance of her citizens, in case she should 
exercise it — in severing, as in making, the Compact — can- 
not be transferred by inference or implication. This, as 
we have seen, can pass, only, by express terms of sur- 
render.* There is no such express surrender in the Con- 
stitution, nor can any intention to make such be inferred, 
even upon taking the whole Constitution together. None, 
at least, from this clause of the Constitution. Is there 
any other that even looks that way ? 
I,/ Professor Norton. If it were not for what you said, 
in the beginning, about the clause which declares that 
this Constitution, and the laws of the United States, 
which shall be made in pursuance thereof, and all trea- 
ties made, or which shall be made, under the authority 
of the United States, shall be the supreme law of the 
land, etc., I should certainly say that that does look 
that way. But, from what you have said, I suppose 
you hold that it does not. 

Mr Stephens. Most assuredly I do ; and for the rea- 
sons before given. This clause contains no delegation 
of i>ower, — makes no acknowledgment of a surrender 
of any. It simply declares a flict, or truth, which results 
from the nature of the Compact. The same fact, here 
declared, was admitted to exist under the Articles of 
the Confederation. They were equally the supreme law 

* Ante, p. 83. 



Col. Y.J CONSTITUTION CONSIDERED. 197 

of the land, while they lasted, as the Constitution now 
is.* They were just as obligatory, upon the States, as 
the Constitution is. So said Mr. Hamilton and Mr. Miv 
dison, and so held Mr. Justice Chase, on the Supreme 
Court Bench, as we have seen.f This clause, as Mr. 
Hamilton said, is only a limitation inserted out of abun- 
dant caution. That limitation was to rebut the very 
inference that you would draw. It was inserted to 
make it clear that not only was the allegiance of the 
citizens of the several States not transferred, by virtue 
of any thing in the Constitution, to the United States, 
but that even obedience to their laws, etc., could be en- 
joined, only so far as these laws were made m pursu- 
ance of tlie Constitution ! 

The great difference between this clause, offered in sub- 
stance by Luther Martin, and the one offered by the 
Nationals, and for which Martin's was substituted, was, 
that theirs gave to the United States the power or right 
to judge as between them and the States severally upon 
Constitutional infractions, while his refused to delegate 
this power, leaving it, therefore, with the States, where 
it was before. 

Prof. Norton. If this be so, please, then, explaui, if 
you can, why the next clause was added, which requires 
the members of the several State Legislatures, and all 
Executive and Judicial officers of the States, to take an 
oath to support the Constitution ? 

Mr. Stephens. This can be easily done, ana in no more 
pertinent language, perhaps, than Mr. Madison used in 
answering the same question, when asked, while the Con- 
stitution was before the people for their consideration. 
[n the forty-third number of the Federalist, he says :J 

" It has been asked why it was thought necessary 

* Ante, pp. 45-48 t I^id. X Dawso7Vs Edition, p. 317. 



198 CONSTITUTIONAL VIEW OF THE WAR. [\^. I. 

thai the State magistracy should be bound to support 
the Federal Constitution, and unnecessary that a like 
oath should be imposed on the officers of the United States 
in favor of the State Constitutions. Several reasons might 
be assigned for the distinction. I content myself with one 
which is obviqus and conclusive. The members of the 
Federal Government will have no agency in carrying 
the State Constitutions into effect. The members of the 
State Governments, on the contrary, will have an essential 
agency in giving effect to the Federal Constitution. The 
election of the President and Senate will depend, in all 
cases, on the Legislatures of the several States." etc. 

This is the reason Mr. Madison assigned for it. Whether 
it was a conclusive reason for the propriety of putting this 
clause in or not, yet his giving it, when he did, and as he 
did, is conclusive proof that no inference can be drawn 
from the clause, as it stands in the Constitution, that it 
was intended, by virtue of it, any more than by virtue of 
the other clause just before it, to transfer the allegiance of 
the citizens of the several States to the United States ; 
and, thereby, form a National Government instead of a 
Federal one. Mr. Madison, recollect, was one of the 
extremest in the Convention for a National Government, 
and not a Federal one ; but here, in speaking of the 
nature of the Government which was finally agreed upon, 
he calls it '' tJie Federal Government" and the Constitu- 
tion he styles '' the Federal Constitution." 

This oath was opposed by Mr. Wilson, one of the lead- 
ing Nationals in the Convention. " He said he was not 
fond of oaths. He considered them a left-handed secu- 
rity. A good Government did not need them, and a bad 
one could not or ought not to be supported."* He, cer- 
tainly, did not regard it as you do. 

* Madison Paxiers, EllioVs Debates, vol. v, p. 352, 



Col. v.] constitution CONSIDERED 199 

But, as also quite pertinent in further answer to your 
question, I refer to what Mr. Madison said, in the next 
number of the Federalist, upon the general nature of the 
powers delegated under the Constitution, from which 
it clearly appears that he did not consider the nature 
of the new Government essentially changed, in ^ny ijar- 
ticular, from what it was under the Confederation. 

" If the new Constitution," says he, " be examined 
with accuracy and candor, it will be found that the 
change which it proposes consists much less in the addi- 
tion of NEW POWERS to the Union, than in the invigora- 
tion of its ORIGINAL POWERS. The regulation of com- 
merce, it is true, is a new power; but that seems to be 
an addition which few oppose, and from which no appre- 
hensions are entertained. The powers relating to war 
and peace, armies and fleets, treaties and finances, with 
the other more considerable j^owers, are all vested in the 
existing Congress by the Articles of Confederation. The 
proposed change does not enlarge these powers ; it only 
substitutes a more effectual mode of administering them. 
The change relating to taxation may be regarded as the 
most important ; and yet the present Congress have as 
complete authority to require of the States indefinite 
supplies of money for the common defence and general 
welfare, as the future Congress will have to require them 
of individual citizens ; and the latter will be no more 
bound than the States themselves have been, to pay the 
(piotas respectively taxed on them."* 

From both these extracts from the Federalist, it clearly 
appears that Mr. Madison, who is styled the father :f the 
Constitution, did not consider that the Federative nature 
and character of the previously existing Union between 
tilt States was essentially changed in any particular by 

* Mr. Madison, Federalist, No. 44, p. 324, Dawson's Edition. 



200 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

the new Constitution, framed with the view of perfecting 
that Union. 

''The change," says he, "consists much less in the 
addition of new powers to the Union than in the invigo- 
ration of its original powers !" Words of what import 
are these, coming from the source they did ? And how 
true we shall find them to be upon examining closely 
the analysis of the various provisions of the two instru- 
ments, the Articles of Confederation and the Constitution 
which we have made? What are the new powers dele- 
gated in the Constitution? 

These, upcm examining the analysis in each case and 
comparing them, will be found to be 

1st. The power to raise revenue by duties upon im- 
posts and taxes directly upon the people without resort 
to requisitions upon the States. 

2d. The power to make the rules for aliens to be ad- 
mitted to citizenship in the several States, uniform in all 
the States, and like uniform rules regulating bankruptcy 

3d. The power to promote the progress of science and 
useful arts by securing, for limited times, to authors and 
inventors, the exclusive right to their writings and dis- 
coveries. 

4th. The power to regulate commerce with Foreign 
Nations, among the several States, and with the Indian 
Tribes. 

This, Mr. Madison puts amongst the new powers. 
Though, in fact, it was but an enlargement of a previously 
existing power in the Congress. By the Articles of the 
Confederation, the Congress had pow^er to regulate trade 
with the Indian Tribes. This power in the Constitution 
was only enlarged by extending it to Foreign Nations 
and among the several States as well as the Indian 
Tribes. It is in principle not a new powder, but an old 
one, extended and enlarged. 



Col. Y.] CONSTITUTION CONSIDERED. 201 

Besides these four there is hardly a new power dele- 
gated in the new Constitution of sufficient importance to 
need special notice. 

The Covenants between the States, imposing restraints 
and assuming obligations, run almost in the same Ian 
guage throughout both instruments. 

Amongst the new restraints the most important are 

1st. That no State shall emit bills of credit or make 
any thing but gold and silver a legal tender in the pay- 
ment of debts; pass any bill of attainder; or ex post 
fcbcto law, or law impairing the obligation of contracts, or 
grant any title of nobility. 

2d. No State shall, without the consent of Congress, 
lay any imposts or duty upon imports, exports, etc. 

The prohibitions against any of the States forming 
alliances, etc., making war, etc., are nearly the same in 
both. 

One striking feature in the new Constitution is that 
the States under it have entire control over their militia. 

The Congress, under the Constitution, has no power 
over them, except to provide by law for organizing, arm- 
ing, disciplining them; and for calling them out for 
specific purposes and governing them when in the service 
of the United States. But the States have retained to 
themselves severally the power of training and officering 
and sending them forth upon any call made for them. 

By the Articles of Confederation the Congress had the 
appointment of all the officers of the militia when in ser- 
vice, from the regimental officers up. By the Constitu- 
tion the power is reserved to the States to appoint all the 
officers of the militia, whether in service or not, from the 
lowest to the highest. 

Great stress, by many, has been put upon the Judicial 
Department in the new system. This, however, is no 



202 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

new feature. Under the Articles of Confederation there 
was a Judiciary provided. It is enlarged in the new 
Constitution, that is all. There is no change in principle 
in this particular. 

Of all the new obligations assumed by the States, the 
most important, and one without which, it was univer- 
sally admitted, the Constitution could not be formed, is 
that which provides for the rendition of fugitives from 
service from one State to another. We shall have much 
to say of this hereafter. It was, however, only an en- 
largement of the principle in the Articles of Confedera- 
tion on which fugitives from justice were to be delivered 
up. And Mr. Madison truly said, after his enumeration, 
that all the other more considerahle 'powers under the 
Constitution were vested in the Congress under the 
Articles of Confederation. If the States then, under the 
Confederation, retained their Sovereignty severally, wh}' 
do they not under this Constitution ? 

Did their people, by adopting this Constitution, under- 
stand that, thereby, they were surrendering the separate 
Sovereignty of the States? That, for which the war of 
the Revolution had been fought, and for the maintenance 
of which the Confederation had been formed ? Did the} 
understand that, thereafter, there Avere to be no more 
States United by a Compact of Union between them, but 
that all the people of the whole land, by the ratification 
of this Constitution, were to be merged into one body- 
politic, into one Community, one Nation under a social 
Compact ? Does the Constitution, on its face, taken alto- 
gether or in any part, admit any such construction ? 
Does not the clause next to the last, which provides for 
future changes or amendments in it, utterly refute and 
negative forever every such idea or supposition ; or rather 
every such gross heresy? 



Col. v.] CONSTITUTION CONSIDERED. 203 

In this it is expressly stipulated, that apoii all future 
changes, or amendments, the States, as States, shall act, 
and that it shall require the concurrence of three fourtlis 
of all the States, in their State organization, and by their 
State Governments, to make any alteration or amend- 
ment. It is especially stipulated, that no amendment 
shall ever be made, which shall deprive the States of 
their equal suffrage in the Senate ! Does not this clearly 
show where ultimate Sovereign power rests under this 
system ? That is, that it remalus with the States seve- 
rally, now, just as it did under the Confederation. 

Can this clause of the Constitution admit of any other 
version or reading without the grossest violation of the 
plainest import of language ? Was not that the under- 
standing of it by its authors and framers ? If not, what 
mockery is there in the last of the mutual Covenants in 
our classification ? That is in these words : 

" The United States shall guarantee to every State in 
this Union a Republican form of Government, and shall 
protect each of them against invasion, and on application 
of the Legislature, or of the Executive (when the Legis- 
lature cannot be convened) against domestic violence." 

Is not this the language of Confederation ? The lan- 
guage of Compact ? The language of Alliance between 
Sovereign States ? Alliance for mutual safety and pro- 
tection against foes without, as well as foes within ? Do 
not aU the States United, under this Compact, by this 
clause, guarantee its own Institutions to each State in the 
Allian(^.e thus formed ? Not that the clause confers any 
power on the States jointly to interfere in any manner or 
form, or in any contingency, in changing, modelling, 
moulding, or shaping the Institutions of any State accord- 
ing to their joint will or pleasure ! No more pal^Dable, or 
gross a perversion of the meaning of words could be 



J 



204 CONSTITUTIONAL VIP]W OP THE WAR. [Vol.1 

made, than such a construction as that. But does it not 
clearly set forth a solemn obligation on the part of her 
Confederates to maintain, sustain and secure, by their 
joint authority and means, to each State, such Republican 
Institutions as each State, for itself, in its o^vn Sovereign 
will, may adopt? 

My dear Sirs, what is a State ? Did not the framers 
of this instrument understand the meaning of the words 
they used ? Is it not a body-politic — a Community or- 
ganized with all the functions and powers of Government 
within itself? 

Vattel says : " Nations, or States, are bodies-politic. 
Societies of men, united together for the purpose of their 
mutual safety and advantage by the efforts of their com- 
bined strength. Such society has her affairs and her 
interests; she deliberates and takes resolutions in com- 
mon, thus becoming a moral person, who possesses an 
understanding and a will peculiar to herself and is sus- 
ceptible of obligations and rights."* 

Were not the States for which this Constitution was 
framed, and by which it was adopted as a bond of Union, 
such bodies politic ? Such " several Sovereign and inde- 
pendent States," as, according to the same author pre- 
viously quoted, "may unite themselves together by a 
perpetual Confederacy, without ceasing to be, each, a 
perfect State,'' and w^ithout any impairment, as he says, 
of '' the Sovereignty of each ?"f 

Were tb^y not just such States as, Montesquieu says, 
may form " a Confederate Republic," in which case " the 
Confederacy may be dissolved, and the Confederates pre- 
serve their Sovereignty ?" Were they not such States as, 
Cicero says, ought to possess within themselves princi- 

* Preliminaries to Treatise on the Laws of Nations, p. 49. 
1 Ante, p. 1G9. 



Col. v.] CONSTITUTION CONSIDERED. 205 

pies of indestructibility ? "A State," says lie;'= '• should 
"be so constituted as to live forever! For a Cobop'"" 
monwealtli there is no natural dissolution, as there is for 
a man to whom death not only becomes necessary, but 
often desirable." When " a State," however, " is put an 
end to, it is destroyed, extinguished," annihilated ! 

There is nothing, says this profound philosopher, in 
another place, "in which human virtue can more closely 
resemble the Divine Powers, than in establishing new 
States, or in preserving those already established !" 

Were States ever more Providentially, yea. Divinely, 
established, than these had been? Under their whole 
superstructure, in their Declaration of Independence, lie / 
the great truths, announced by political bodies for the / 
first time in the history of the w^orld, of the capacity and 
risht of man to self-crovernment. That all Governments 
" derive their just powers from the consent of the 
governed," and that, "whenever any Government be- 
comes destructive of the ends" for which it is esta- 
blished, " it is the right of the people to alter or abolish 
it, and to institute a new Government, laying its founda- 
tion on such principles, and organizing its powers in such 
forms, as to them may seem most likely to effect their 
safety and happiness." This is asserted to be the inar 
lienable right of all Peoples and all States! On these 
immutable principles, the Governments of these States 
had been established, separately, and severally. \?ere 
States ever established that so well deserved to live forever? 

Was there ever a grander exhibition of this highest 
of all bare human virtues, according to Cicero, than was 
presented by the Patriot Fathers of 1787, in forming 
this Constitution ? Was not their main, chief, and lead- 



Cicero on the Commonwealth. 



206 CONSTITUTIONAL VIEW OP THE WAR. [Vol. I. 

ing object throughout, and the object of the Union under 
it, to preserve, and to perpetmite, as far as possible by 
human agency, these separate and several States so 
established? Is not this apparent from the whole work? 
Is it not apparent from the face of the instrument, from 
its Alpha to its Omega? In other words, is not the 
Constitution, upon its face, as made, without looking into 
the subsequent amendments. Federal in its every feature, 
from beginning to end ? 

What say you ? 

Prof. Norton. I will postpone what I have to say 
antil you get through. 

Mr. Stephens. Well, then, the next step with me, after 
this examination of the Constitution itself, will be to 
look into the action of the several States upon it, and see 
whether they considered it as uniting and consolidating 
the whole people of the country, over which it was to 
extend, into one Nation, or whether they considered it, as 
Washington did, a consolidation of the Union of States, 
joined together by it, into one Great Confederated 
Republic. 



COLLOQUY VI. 

T TE ACTION OP THE SEVERAL STATES ON THE CONSTITUTION — DEBATES 
IN THE SEVERAL STATE CONVENTIONS — COMMENTS THEREON. 

Mr. Stephens. The next step, then, in oiir inquiry 
and investigation, will be to look into the action of the 
several States upon this Constitution, when it was sub- 
mitted to their Legislatures, by the Congress, as requested 
by the Convention, and see how it was understood by 
them, and what construction was put upon it by its sup- 
porters and advocates. Whether it was considered by 
them as a surrender of the Sovereignty of the several 
States, or simply as a new Constitutional Compact, be- 
tween the States, upon the same Federal basis, as the 
former Articles of their Union had been. 

We will take them up in their order of ratificar 
tion. Tn each case, looking first into the the action of 
the State, and, secondly, into the debates, where any 
have been preserved, as part of the res gestw, showing 
the understanding of the States, in their ratification, ay 
appears from the record. 

FIRST, DELAWARE. 

The Legislature of the State of Delaware called a Coi? 
vention of her people to consider the Constitution, and 
take action upon it, according to the request of Congress. 
In the Convention of this State, there seems to have been 
110 division and no discussion. At least, none of the 

207 



208 CONSTITLTIONAL VIEW OF THE WAR. fVou I 

debates in that body, if any were had, have been pre- 
served. Here is the action of the Convention. 

"We, the Deputies of the People of the Delaware 
State, in Convention met, having taken into our serious 
consideration the Federal Constitution, proposed and 
agreed upon by the Deputies of the United States, in a 
General Convention, held at the City of Philadelphia, on 
the seventeenth day of September, in the year of our 
Lord one thousand seven hundred and eighty-seven, have 
approved, assented to, ratified, and confirmed, and by 
these presents do, in virtue of the power and authority 
to us given, for and in behalf of ourselves and our con- 
stituents, fully, freely, and entirely approve of, assent to, 
ratify, and confirm, the said Constitution. 

•' Done in Convention, at Dover, this seventh day of 
December, in the year aforesaid, and in the year of the 
Independence of the United States of America, the 
twelfth."* 

In this very act of ratification, we see it styled, by 
the Sovereign people of Delaware, " The Federal Con- 
stitution." Indeed, no one can doubt, for a moment, 
from the Course of her Delegates, in the Philadelphia 
ConA ention, that the People of Delaware understood the 
Constitution, as they here style it, to be Federal in its 
character, and that the Sovereignty of the State was still 
retained. 

SECOND, PENNSYLVANIA. 

The next State in order was Pennsylvania. In this, 
as in the case of Delaware, let us look firnt into the action 
of the State and then into the debates, as far as we have 
them, to see what light they throw upon this action. 
First, then, the action of the Convention is in these 
w^ords. 



* ElUoVs Debates, vol. i, p. 319. 



Col. VL] STATE RATIFICATIONS— PENNSYLVANIA. 209 

"III the Name of the People of Pennsylvania. 

" Be it known unto all men, that we, the Delegates of 
the people of the Commonwealth of Pennsylvania, in 
General Convention assembled, have assented to and rati- 
fied, and by these presents do, in the name and by the 
authority of the same people, and for ourselves, assent 
to and ratify the foregoing Constitution for the United 
States of America. Done in Convention at Philadelphia, 
the twelfth day of December, in the year of our Lord one 
thousand seven hundred and eighty-seven, and of the 
independence of the United States of America the twelfth. 
In witness whereof, we have hereunto subscribed our 
names. "•■^' 

No allusion in this is made to the character of the in- 
strument or of the understanding of the members of the 
Convention of it, farther than their styling it a "Consti- 
tution /o7' the United /States of America." That is a Con- 
stitution for States United, and not for the whole mass of 
the people of these States in the aggregate. This of 
itself is quite enough to show that they considered it 
Federal or Federative in its character ! 

But we are not left in doubt or to inference on this 
point. The debates in the Convention of Pennsylvania 
have been in part preserved. The speeches of Mr. Wil- 
son, at least, who had been in the Federal Convention 
that framed the Constitution, and who was also in the 
State Convention that ratified it, we have. These, it is 
true, are all of these debates that we have, but they 
throw much light upon the subject. 

Mr. Wilson, recollect, was one of the ablest and most 
zealous of the Nationals in the Federal Convention. But 
when their plan failed, he, as Hamilton, Morris, iviiig, 

* MlioVs Debates, vol. i, p. 319. 
14 



210 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

and Madison, gave the Constitution agreed upon, Lis 
warm support. Wliat he said, therefore, in the State 
Convention, touching the character, or nature of the Con- 
stitution, which was finally agreed upon, is entitled to 
great weight, and particularly all his disclaimers, as to 
its being a Consolidation of the whole people of the 
country into one single grand National Republic. Let 
us, then, in the second place, see what was his judgment 
of it, as given to the Pennsylvania Convention. In 
opening the deliberations of that body, he said :* 

" The system proposed, by the late Convention, for 
the Government of the United States, is now before you. 
Of that Convention, I had the honor to be a member. 
As I am the only member of that body, who has the 
honor to be also a member of this, it may be expected 
that I should prepare the way for the deliberations (5f this 
Assembly, by unfolding the difficulties, which the late 
Convention was obliged to encounter; by pointing out 
the end which they proposed to accomplish ; and by 
tracing the general principles which they have adopted 
for the accomplishment of that end." * * * 

" A very important difficulty arose from comparing the 
extent of the country to be governed, with the kind of 
Government, which it would be proper to establish in it. 
It has been an opinion, countenanced by high authority, 
Hhat the natural property of small States is to be governed 
as a Republic ; of middling ones, to be subject to a moii- 
archy; and of large empires, to be swayed by a despotic 
piince; — and that the consequence is, that, in order tu 
preserve the principles of the established Government, 
the State must be supported in the extent it has acquired ; 
and that the spirit of the State will alter in proportion 

* ElUoVs Debates^ vol. li, p. 418. 



Col. VI.] STATE RATIFICATIONS— PP]NNSYLVANIA. 211 

as it extends or contracts its limits.' {Montesquieu^ 
b. viii. c. 20.) This opinion seems to be supported, 
rather than contradicted, by the history of the Govern- 
ments in the old Avorld. Here, then, the difficulty 
appeared in full view. On one hand, the United States 
contain an immense extent of Territory ; and, according 
to the foregoing opinion, a despotic Government is best 
adapted to that extent. On the other hand, it was well 
known, that, however the citizens of the United States 
might with pleasure suljmit to the legitimate restraints 
of a Republican Constitution, they would reject with in- 
dignation the fetters of despotism. What, then, was to 
be done ? The idea of a Confederate Repuhlic presented 
itself. This kind of Constitution has been thought to 
have ^all the internal advantages of a Republican, to- 
gether with the external force of a monarchical Govern- 
ment.' {Montesquieu, b. ix, c. 1, 2 ; Paley, 199, 202.) 

"Its description is 'a Convention, by which several 
States agree to become members of a larger one, which 
they intend to establish. It is a kind of assemblage of 
societies that constitute a new one, capable of increasing by 
means of further association.' {Monttsquieu, b. ix, c. 1.) 
The expanding quality of such Government is peculiarly 
fitted for the United States, the greatest part of whose 
territory is yet uncultivated. 

" But while this form of Government enables us to sur- 
mount the difficulty last mentioned, it conducted us to 
another of which I am now to take notice. It left us 
almost without precedent or guide, and, consequentl)', 
without the benefit of that instruction which, ^n iiiduy 
cases, may be derived from the Constitution, and historj% 
and experience, of other nations. Several associations 
have frequently been called by the name of Confeder ite 
States, which have not, in propriety of language, deserved 



212 CONSTITUTIONAL VIEW OP THE WAR. [Vo I 

it. The Swiss Cantons are connected only by alliances. 
The United Netherlands are, indeed, an assemblage ^f 
societiefe ; but this assemblage constitutes no new one, and, 
therefore, it does not correspond with the full definition 
of a Confederate Republic. The Germanic body is com- 
posed of such disproportioned and discordant materials, 
and its structure is so intricate and complex, that little 
useful knowledge can be drawn from it. Ancient history 
discloses, and barely discloses, to our view, some Con- 
federate Republics — the Achaean League, the Lycian Con- 
federacy, and the Amphictyonic Council. But the facts 
recorded concerning their Constitutions are so few and 
general, and their histories are so unmarked and defec- 
tive, that no satisfoctory information can be collected 
from them, concerning many particular circumstances, 
from an accurate discernment and compa-rison of which, 
alone, legitimate and practical inferences can be made, 
from one Constitution to another. Besides, the situation 
and dimension of those Confederacies, and the state of 
society, manners, and habits, in them, were so different 
from those of tlie United States, that the most correct 
descriptions could have supplied but a very small fund 
of applicable remark. Thus, in forming this system, we 
were deprived of many advantages, which the history and 
experience of other ages and other countries would, in 
other cases, have afforded us." * * '^' 

" To be left without guide or precedent was not the 
only difficulty in which the Convention was involvcjd, 
by proposing to their constituents a plan of a Confederoj- 
ted Repid)lic. They found themselves embarrassed with 
another, of peculiar delicacy and importance. J. mean, 
that of drawing a proper line between the National 
Government and the Governments of the several States. 
It wns easy to discover a proper and satisfactory principle 



CoL.VI.1 STATE RATIFICATIONS— PENNSYLVANIA. 213 

on the subject. Whatever object of Government is con- 
fined, m its operation and effects, within the bounds of a 
particular State, should be considered as belonging to the 
Government of that State ; whatever object of Govern- 
ment extends, in its operation or effects, heijond the bounds 
of a particidar State, should be considered as belonging 
to the Government of the United States. But though 
this principle be sound and satisfactory, its application to 
particular cases would be accompanied with much diffi- 
culty, because, in its application, room must be allowed 
for great discretionary latitude of construction of the 
principle. In order to lessen or remove the difficulty 
arising from discretionary construction on this subject, 
an enumeration of particular instances, in which the 
application of the principle ought to take place, has been 
attempted with much industry and care. It is only in 
mathematical science that a line can be described with 
mathematical precision. But I flatter myself, that, upon 
the strictest investigation, the enumercdion will be found to 
be safe and unexceptionable, and accurate, too, in as great 
a degree as accuracy can be expected in a subject of this 
nature. Particulars under this head will be more properly 
explained, when we descend to the minute view of the 
enumeration, which is made in the proposed Constitution. 

"After all, it will be necessary that, on a subject so 
peculiarly delicate as this, much prudence, much candor, 
much moderation, and much liberality should be exer- 
cised and displayed, both by the Federal Government, and 
b}^ tlie Governments of the several States. It" is to be 
hoped that those virtues of Government will be exer 
cised and displayed, when we consider that the powers 
rvf the Federal Government, and those of the State Govern- 
ments, are drawn from sources equally pure." * * * 

" The United States may adopt any one of four dif- 



214 CONSTITUTIONAL VIEW OF THE V\^AR. [Vol. I. 

fercnt systems. They may become consolidated into one 
Government, in which the separate existence of the States 
shall be entirely absolved. They may reject any plan of 
Union or association, and act as separate and unconnected 
States. They may form two or more Confederacies. Tiiey 
may unite in one Federal Republic. Which of these sys- 
tems ought to have been formed by the Convention?" 

After giving his opinion against the first three, he con- 
cludes thus: 

" The remaining system which the American States 
may adopt, is a Union of them under one Confederate Re- 
iniblic. It will not be necessary to employ much time, 
or many arguments, to show that this is the most eligible 
system that can be proposed. By adopting this system, 
the vigor and decision of a wide spreading monarchy, 
may be joined to the freedom and beneficence of a con- 
tracted Republic. The extent of territory, the diversity 
of climate and soil, the number, and greatness, and con- 
nection, of lakes and rivers, with which the United States 
are intersected, and almost surrounded, — all indicate an 
enlarged Government to be lit and advantageous for 
them. ''' ""' * If those opinions and wishes are as 
well founded as they have been general, the late Con- 
vention were justified in proposing to their constituents 
one Confederate Republic, as the best system of a National 
Government for the United States," * * * 

In another speech, on 1st December, 1787, as the dis- 
cussion progressed, he said: "We have heard much about 
a consolidated Government, I wish the honorable gen- 
tleman would condescend to give us a definition of what 
he meant by it. I think this the more necessary, be- 
cause I apprehend that the term, in tlie numerous times 
it, has been used, has not always been used in the same 
sense. It may be said, and I believe it has been said, 



Col. YI.j STATE RATIFICATIONS— PENNSYLVANIA. 215 

that a consolidated Government is such as will absorb 
and destroy the Governments of the several States. If it 
is taken in this view, the plan before us is not a consoli- 
dated Government, as I showed on a former day, and 
may, if necessary, show further on some future occasion. 
On the other hand, if it is meant that the General 
Government will take from the State Governments their 
power in some particulars, it is confessed, and evident, 
that this will be its operation and ellect." 

Again, on the 4th of December, he said : — " The very 
manner of introducing this Constitution, by the recogni- 
tion of the authority of the people, is said to change the 
principles of the present Confederation, and to introduce 
a Consolidating and absorbing Government. 

" In this Confederated Republic, the Sovereignty of 
the States, it is said, is not preserved. We are told that 
there cannot be two Sovereign powers, and that a sul3- 
ordinate Sovereignty is no Sovereignty. 

" It will be worth while, Mr. President, to consider 
this objection at large. When I had the ho or of speak- 
ing formerly on this subject, I stated, in as concise a 
manner as possible, the leading ideas that occurred to 
me, to ascertain where the Supreme and Sovereign power 
resides. It has not been, nor, I presume, will it be de- 
nied, that somewhere there is, and of necessity must be, 
a Supreme, absolute, and uncontrollable authority. This, 
I believe, may justly be termed the Socereign power; for, 
from that gentleman's (Mr. Findley) account of the 
matter, it camiot be Sovereign unless it is Supreme ; for, 
says he a subordinate Sovereignty is no Sovereignty at 
all. I had the honor of observing, that, if the question 
was asked, where the Supreme power resided, different 
answers would be given by different writers. I men- 
tioned that Blackstone would tell you that, in Britain, it 



216 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

is lodged in the British Parliament; and I believe there 
is no writer, on this subject, on the other side of the 
Atlantic, but supposed it to be vested in that body. 1 
stated, further, that, if the question was asked of some 
politician, who had not considered the subject with suffi- 
cient accuracy, where the Supreme power resided in our 
Government, he would answer, that it was vested in the 
State Constitutions. This opinion approaches near the 
truth, l^ut does not reach it; for the truth is, that the 
Supreme, absolute, and uncontrollable authority remains 
with the 2^602)le. I mentioned, also, that the practical 
recognition of this tncth was reserved for the lionor of 
this country. I recollect no Constitution founded on this 
principle ; but we have witnessed the improvement, and 
enjoy the happiness of seeing it carried into practice. 
The great and penetrating mind of Locke seems to be 
the only one that pointed towards even the theory of 
this great truth. 

y^ " When I made the observation that some politicians 
would say the Supreme power was lodged in our State 
Constitutions, I did not suspect that the honorable gen- 
tleman from Westmoreland (Mr. Findley) was included 
in that description ; but I find myself disappointed ; for 
1 imagined his opposition would arise from another con- 
sideration. His position is, that the /Supreme potoer 
resides in the /States, as Governments ; and mine is, that 
it resides in the p)(^ople, as the fountain of Government ; 
that the people have not — that the p)eop)le meant not — and 
that the people ought not — to p)art ivith it to any Govenv 
ment whatsoever. In their hands it remains secure. They 
can delegate it in such proportions, to such bodies, on 
sucli terms, and under such limitations, as they think 
proper. I agree with the members in opposition, that 
there cannot be two Sovereign powers on the same 



Col. VI.] STATE RATIFICATIONS— PENNSYLVANIA. 217 

subject. * * * This, I say, is the inherent and una- 
lienable right of the people; and as an illustration of 
it, I beg to read a few words from the Declaration of 
Independence, made bv the Representatives of the United 
States, and recognised by the whole Union. 

" ' We hold these truths to be self-evident, that all 
men are created equal ; that they are endowed by their 
Creator with certain inalienable rights ; that among these 
are life, liberty, and the pursuit of happiness ; that, to 
secure these rights. Governments are instituted among 
men, deriving their just j^oivers from the consent of the 
governed; that, whenever any form of Government be- 
comes destructive of these ends, it is the right of the 
people to alter, or abolish it, and institute a new 
Government, laying its foundation on such princi- 
ples, and organizing its powers in such forms, as to 
them shall seem most likely to effect their safety and 
happiness.' 

" This is the broad basis on which our Independence 
was placed : on the same certain and solid foundation 
this system is erected. =;: * * 

" It is mentioned that this Federal Government will 
annihilate and absorb all the State Governments. I wish 
to save, as much as possible, the time of the house ; I 
shall not, therefore, recapitulate Vvdiat I had the honor of 
saying last week on this subject. I hope it was then 
shown that, instead of being abolished (as insinuated), 
from the very nature of things, and from the organiza- 
tion of the system itself, the State Governments must 
exist, or the General Government must fall amidst their 
ruins. Indeed, so far p.s to the forms, it is admitted they 
may remain ; but the gentlemen seem to think their 
power will be gone. 

" I shall have occasion to take notice of this power 



218 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

heretafter ; and, I believe, if it was necessary, it could be 
shown that the State Governments, as States, will enjoy 
as much power, and more dignity, happiness, and security, 
than they have hitherto done. ^'' ^' '^'' * 

" I say, Sir, that it was the design of this system to take 
some 2^ower from the State Governments, and to place it 
in the General Government. It was also the design that 
the people should be admitted to the exercise of some 
powers, which they did not exercise under iliQ iiresent 
Federation. It was thought proper that the citizens, as 
well as the States, should be represented. How far the 
representation in the Senate is a representation of States, 
we shall see by and by, when we come to consider that 
branch of the Federal Government. 

" This system, it is said, unhinges and eradicates the 
State Governments, and was systematically intended so 
to do. To establish the intention, an argument is drawn 
from Article 1st, Section 4th, on the subject of elec- 
tions. I have already had occasion to remark upon this, 
and shall, therefore, pass on to the next objection. 

" That the last clause of the 8th Section of the 1st 
Article, gives the power of Self-preservation to the Gene- 
ral Government, independent of the States ; for, in case of 
their abolition, it will be alleged, in behalf of the General 
Government, that Self-preservation is the first law, and 
necessary to the exercise of all other pov^ers. 

"Now, let us see what this objection amounts to. 
Who are to have this Self-preserving power ? The Con- 
gress. Who are Congress ? It is a body that will con- 
sist of a Senate and a House of Representatives. Who 
compose this Senate? Those who are elected by the 
Legislature of the different States. Who are the electors 
of the House of Representatives ? Those who are rpiali- 
fied to vote for the most numerous branch of the Legis- 



Col. YL] STATE KATIFICATIONS— PENNSYLVANIA. 219 

lature in the separate States. Suppose the State Legis- 
latures annihiLated ; where is the criterion to ascertain 
the qualification of electors? and unless this be ascer- 
tained, they cannot be admitted to vote ; if a State Legis- 
lature is not elected, there can be no Senate, because the 
Senators are to be chosen by the Legislatures only. 

"This is a plain and simple deduction from the Con- 
stitution; and yet the objection is stated as conclusive, 
upon an agreement expressly drawn from the last clause 
of this section. 

"It is repeated, with confidence, ' that this is not a 
Federal Government, but a complete one, with Legisla- 
tive, Executive, and Judicial powers; it is a Consoli- 
dating Government.' I have already mentioned the 
misuse of the term ; I wish the gentleman would in- 
dulge us with his dqfinition of the word. If, when he 
says it is a consolidation, he means so far as relates to 
the general objects of the Union ; so fiir it was intended 
to be a consolidation, and on such a consolidation, per- 
haps, our very existence, as a nation, depends. If, on 
the other hand (as something, which has been said, 
seems to indicate), he (Mr. Findley) means that it will 
absorb the Governments of the individual States, — so far 
is this position from being admitted, that it is unanswera- 
bly controverted. * ''' ^ 

" Sir, I think there is another subject with regard to 
which this Constitution deserves approbation. I mean 
the accuracy with which the line is drawn between tlie 
])0wers of the General Government and those of the p«r- 
iicular Stat-e Governments. We have heard some gen- 
eral observations, on this subject, from the gentlemen 
who conduct the opposition. They have asserted that 
these powers are unlimited and undefined. These 
words are as easily pronounced as limited and dejiiifd. 



220 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

They liave already been answered by my honorable 
colleague (Mr. M'Kean), therefo^^e I shall not enter 
into an explanation. But it is not pretended that the 
line is drawn with mathematical precision ; the inaccu- 
racy of language must, to a certain degree, prevent the 
accomplishment of such a desire. Whoever views the 
matter in a true light, will see that the powers are as 
minutely enumerated and defined as was possible, and 
will also discover that the general clause, against which 
60 much exception is taken, is nothing more than what 
was necessary to render effectual the particular powers 
that are granted. 

" But let us suppose — and this supposition is very easy 
in the minds of the gentlemen on tlie other side, — that 
there is some difficulty in ascertaining where the true 
line lies. Are we, therefore, throw.n into despair ? Are 
disputes between the General Government and the State 
Governments to be necessarily the consequence of inacu- 
racy ? I hope, sir, they will not be the enemies of each 
other, or resemble comets in conflicting orbits, mutually 
operating destruction ; but that their motion will be 
better represented by that of the planetary system, 
where each part moves harmoniously within its proper 
sphere, and no injury arises by interference or opposi- 
tion. Every part, I trust, will be considered as a part 
of the United States. Can any cause of distrust arise 
here ? Is there any increase of risk ? Or, rather, are 
not the enumerated poicers as well defined here, as in 
the -present Articles of Confederation f 

Again, on the lltli December, 1787, he said : 

*' It is objected to this system, that under it there is 

no Sovereignty left in the State Governments. I have 

had occasion to reply to this already ; but I should be 

glad to know at what period the State Governments 



Cou VI.] STATE RATIFICATIONS— PENNSYLVANIA. 221 

became possessed of the Supreme power. On the princi- 
ple on which I found ray arguments, — and that is the 
principle of this Constitution, — the Supreme power re- 
sides in the people. * "*' "••' 

" We are next told, by the honorable gentlemen in 
opposition (as, indeed, we have been from the beginning 
of the debates in this Convention, to the conclusion of 
their speeches, yesterday), that this is a Consolidated 
Government, and will abolish the State Governments. 

'' Definitions of a Consolidated Government have 
been called for; the gentlemen gave us what tliey 
termed definitions, but it does not seem, to me, at 
least, that they have, as yet, expressed clear ideas upon 
that sul)ject. I will endeavor to state their different 
ideas upon this point. The gentleman from ^Yestmore- 
land (Mr. Findley), when speaking on this su]:)ject, 
says, that he means, by a consolidation, ' that Govern- 
ment which puts the thirteen States into one.' 

" The honorable gentleman from Fayette (jMr. Smilie), 
gives you this definition : ' What I mean, by a Con- 
solidated Government, is one that will transfer the 
Sovereignty from the State Governments to the General 
Government.' 

" The honorable member from Cumberland (Mr. 
Whitehill), instead of giving you a definition, sir, tells 
3'ou again, that 'it is a Consolidated Governmeni, and 
we have proved it so.' 

" These, I think, sir, are the different descriptions 
given to us of a Consolidated Government. As to the 
first, that it is a Consolidated Government, that puts the 
thirteen United States into one, — if it is meant that the 
General Government will destroy the Governments of 
the States, I will admit that such a Government would 
not suit the jDcople of America. It would be improper 



222 CONSTITUTIOXxlL YIEW OF THE WAR. [Yol. I. 

for this Country, because it could not be proportioned 
to its extent, on the principles of freedom. But that de- 
scription does not cipphj to tlie system hefore you. This, 
instead of placing the State Governments in jeopardy, is 
founded on their existence. On this principle its or- 
ganization depends ; it must stand or flxU, as the State 
Governments are secured or ruined! Therefore, though 
this may be a very proper description of a Consolidated 
Government, yet it must be disregarded, as inapplicable 
to the proposed Constitution. It is not treated with de- 
cency when such insinuations are offered against it."* 

So much for the debates in the Pennsylvania Conven- 
tion. It is to be regretted that no part of these debates 
has been preserved but the speeches of Mr. Wilson, from 
which these extracts have been read. From these, however, 
it abundantly appears that the nature and character of the 
Government to be instituted under the Constitution of 
the United States was thoroughly discussed. It appears 
clearly, that there was strong opposition to many of its 
features, but, what is of very great importance in our in- 
vestigation, it is equally clear that Mr. AVilson, and the 
majority who acted with him in that Convention, held 
the Constitution to be strictlj^ Federal, and that the 
Government instituted by it was a Federal Government, 
or Confederated Republic. Whatever may have been 
his original views as to a consolidation of the States into 
one National Republic, he distinctly and frankly avowed 
that the Constitution which had been agreed upon did 
not effect that result. He declared further, that accord- 
ing to his understanding of the Constitution, the State 
Governments, as States under it, would enjoy as much 
power, and more dignity, happiness, and security, than 



EllioVs Debates, \-ol. ii, pp. 481-82,-502-503. 



Coi,. YI.] STATE RATIFICATIONS- -NEW JERSEY. 223 

they had done before. He insisted that no cause of dis- 
trust should arise from apprehensions on that score ; for 
the powers of the Federal Government, said he, witli 
emphasis, were as well defined in the Constitution as 
under the Articles of Confederation. His whole powers 
seem to have been put lortli to demonstrate that it was 
not a Consolidated Government, as the opponents of it 
argued that it would be construed to be. He declared 
that it was not treating the Constitution with decency, 
to make such insinuations against it. These speeches of 
Mr. Wilson, without doubt, controlled the majority of 
the Pennsylvania Convention, who gave the Constitution 
their sanction. They show clearly what m.ust have been 
the understanding of the friends and advocates of the 
Constitution as to its nature, and as to the nature of the 
Union thereby established, when they styled it , in their 
ordinance of ratification, "a Constitution for States." 
These speeches of Mr. Wilson were also extensively pub- 
lished in the newspapers of the day. They were widely 
circulated in other States, and, Mr. Curtis says, had 
great influence on the action of other State Conventions. 
Let us, however, proceed with the other States. The 
next in order is New Jersey. 

THIRD, NEW JERSEY. 

The Legislature of this State called a Convention of 
her people, to which the Constitution Avas referred. 
That Convention came to the following Resolutions and 
Ordinance.* 

" In Convention of the State of New Jersey, (18 De- 
cember, 1787.) 

'"■ Whereas, A Convention of Delegates from the follow- 



* EllioVs Debate.^., vol. i, p. 320. 



224 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

ing States, viz. : New Hampshire, Massachusetts, Con- 
necticut, New York, New Jersey, Pennsylvania, Dela- 
ware, Maryland, Virginia, North Carolina, South Caro- 
lina and Georgia, met at Philadelphia, for the purpose 
of deliberating on, and forming, a Constitution for the 
United States of America, — finished their session on the 
17th day of September last, and reported to Congress 
the form which they had agreed upon, in the words fol- 
lowing, viz. : 

"AikI loliereas, Congress, on the 28tli day of September 
last, unanimously did resolve, 'That the said report, with 
the Resolutions and letter accompanying the same, be 
transmitted to the several Legislatures, in order to be 
submitted to a Convention of Delegates, chosen in eacli 
State by the people thereof, in conformity to the resolves 
of the Convention made and provided in that case ; ' 

'^And ivhere((s, The Legislature of this State did, on the 
29th day of October last, resolve in the words following, 
viz.: 'Resohed, unanimously. That it be recommended 
to such of the inhabitants of this State as are entitled to 
vote for Representatives in General Assembly, to meet 
in their respective counties on the fourth Tuesday in No- 
vember next, at the several places fixed by law for hold- 
ing the annual elections, to choose three suitable persons 
to serve as delegates from each county in a State Conven- 
tion, for the purposes hereinbefore mentioned, and that 
the same be conducted agreeably to the mode, and con- 
formably with the rules and regulations, prescribed for 
conducting such elections ; — 

^"Resolved, unanimously, That the persons so selected 
to serve in State Convention, do assemble and meet to- 
gether on the second Tuesday in December next, at Tren- 
ton, in the county of Hunterdon, then and there to take 
mto consideration the aforesaid Constitution, and if ap- 



Col. YL] STATE RATIFICATIONS— NEW JERSEY. 225 

proved of by them, finally to ratify the same in behalf 
and on the part of this State, and make report thereof to 
the United States in Congress assembled, in conformity 
with the resolutions thereto annexed. 

'^ ^ Resolved, That the sheriff's of the respective counties 
of this State shall be, and they are hereby, required to 
gi-\ e as timely notice as may be, by advertisements, to 
the people of their counties, of the time, place and pur- 
pose of holding elections, as aforesaid.' 

^^And whereas, The Legislature of this State did also, 
on the 1st day of November last, make and pass the fol- 
lowing act, viz.: 'An Act to authorize the people of this 
State to meet in Convention, deliberate upoM, agree to, 
and ratify, the Constitution of the United States proposed 
by the late General Convention, — Be it enacted by the 
Council and General Assembly of this State, and it is 
hereby enacted by the authority of the same, That it shall 
and may be lawful for the people thereof, by their Dele- 
gates, to meet in Convention to deliberate upon, and, if 
approved of by them, to ratify, the Constitution for the 
United States proposed by the General Convention held 
at Philadelphia, and every act, matter and clause, therein 
contained, conformably to the resolutions of the Legis- 
lature passed the 29th day of October, 1787, — any law, 
usage, or custom, to the contrary in any wise notwith- 
standing ; ' 

•' Now be it known. That we, the Delegates of the State 
of New Jersey, chosen by the people thereof, for the pur- 
poses aforesaid, having maturely deliberated on and con- 
sidered the aforesaid proposed Constitution, do hereby, 
for and on the behalf of the people of the said State of 
New Jersey, agree to, ratify, and confirm, the same and 
every part thereof. 

"Done in Convention, by the unanimous consent of the 

15 



226 CONSTITUTIONAL VIEW OF THE WAR. [Tol. I. 

merab'^rs present, this 18th day of December, in the year 
of our Lord 1787, and of the independence of the United 
States of America, the twelfth." 

There was no opposition to the Constitution in the 
Convention of New Jersey. It was unanimously adopted. 
But the action of the Convention shows how they under- 
stood it. They agreed to and ratified it as " a Constitu- 
tion for t7i6 United States of America." 

FOURTH, GEORGIA. 

The next State in order is Georgia. Here is her action, 
embodied in the Ordinance of 2d January, 1788, referred 
to before.* 

"In Convention, Wednesday, January 2d, 1788. 

" To all to whom these presents shall come, greeting : 

" Whereas, the form of a Constitution for tlie Govern- 
ment of the United States of America, was, on the 17th 
day of September, 1787, agreed upon and reported to 
Congress, by the Deputies of the said United States, 
convened in Philadelphia, which said Constitution is 
written in the words following, to wit : 

''And wJiereas, the United States in Congress assem- 
bled did, on the 28th day of September, 1787, Resolve, 
unanimously, ' That the said report, with the resolutions 
and letter accompanying the same, be transmitted to the 
several Legislatures, in order to be submitted to a Con- 
vention of Delegates chosen in each State by the people 
thereof, in conformity to the resolves of the Convention 
made and provided in that case ; ' — 

'' And icliereas, the Legislature of the State of Georgia 
did, on the 26th day of October, 1787, in pursuance of 
the above-recited resolution of Congress, Resolve, That a 



* EllioVs Debates, vol. i, p. 323. 



Col. VI.] STATE RATIFICATIONS— CONNECTICUT. 227 

Convention be elected on the day of the next general 
election, and in the same manner that representatives 
are elected ; and that the said Convention consist of not 
more than three members from each county ; and that 
the said Convention should meet at Augusta, on the 
fourth Tuesday in December then next, and as soon 
thereafter as convenient, proceed to consider the said 
report and resolutions, and to adopt or reject any part 
or the whole thereof; 

" Now know ye, that we, the Delegates of the people 
of the State of Georgia, in Convention met, pursuant to 
the resolutions of the Legislature aforesaid, having taken 
into our serious consideration the said Constitution, have 
assented to, ratified, and adopted, and by these presents 
do, in virtue of the powers and authority to us given by 
the people of the said State for that purpose, for and in 
behalf of ourselves and our constituents, fully and entirely 
assent to, ratify, and adopt the said Constitution. 

" Done in Convention, at Augusta, in the said State, 
on the 2d day of January, in the year of our Lord, 
1788, and of the Independence of the United States the 
twelfth." 

^ In the Georgia Convention there was no opposing voice. 
The Constitution was unanimously assented to, ratified, 
and adopted as " a Constitution for the Government of 
the United States of America." A Government of States. 
A Federal Republic. 

FIFTH, CONNECTICUT. 

We come now, Professor, to your State. First, we 
will look at the words of her ratification. These are an 
follows : 

"In the name of the People of the State of Connecticut. 
We, the Delegates of the people of said State, in General 



228 CONSTITUTIONAL YIEW OF THE WAR. [Vol. I. 

(yonveiition assembled, pursuant to an Act of the Legis- 
lature in October last, liave assented to, and ratified, and 
by these presents do assent to, ratify, and adopt the Con- 
stitution reported by the Convention of Delegates in 
Philadelphia, on the 17th day of September, A. d., 1787, 
for the United States of America. 

"Done in Convention, at Hartford, this 9th day of 
January, A. D., 1788. In witness whereof, we have here- 
unto set our hands."* 

Connecticut ratified the Constitution as a form of Gov- 
ernment for States. This shows the understanding of 
the Convention so far as these words, used in the ratifi- 
cation, go. But we are not left to bare inference or argu- 
ment from them. We have seen what Roger Sherman 
and Oliver Ellsworth, two of the Delegates from this 
State, had said of the Constitution in their letter to the 
Governor of the State, on the adjournment of the Federal 
Convention. In that they stated distinctly, that the 
Sovereignty of the States was retained.^ But besides 
this we have the debates in the ratifying Convention. 

Let us look into these, then, in the second place. 
There were several men of great ability in this Conven- 
tion. Amongst whom no one was more prominent than 
Mr. Ellsworth himself He was afterwards Chief Justice 
of the Supreme Court of the United States. On him, as 
a. member of the Philadelphia Convention, devolved the 
part of opening the discussion in the body then assem- 
bled, to consider the Constitution. His opening words 
were <i.s follows : 

"Mr. President: — It is observable that there is no 
preface to the proposed Constitution, but it evidently 
presupposes two things ; one is the necessity of a Federal 
G<yvernmtnt ; the other is the inefficieiicy of the old Arti- 
cles of Confederation." 

* ElliuVs Debates, vol. i. p. 321. t Ante. v. 154. 



Col. YL] STATE RATIFICATIONS— CONNECTICUT. £29 

After going through with a detail of the structure of 
the Government proposed, he concluded by saying : 
" The Constitution before us is a complete system of 
Legislative, Judicial, and Executive power. It was de- 
signed to supply the defects of the former system ; and I 
believe, upon a full discussion, it will be found to answer 
the inirposes for which it was designed."* 

Prof. Norton. I always thought that Judge Ellsworth 
held that the Constitution was not a Federal Compact 
between the States, but that it established a complete 
National Government over the whole people of the United 
States. How is this ? Have I been in error on this 
point ? I have certainly seen him quoted to that effect. 

Mr. Stephens. The quotation you refer to, is one that 
has often been made from one of his speeches in this 
Convention — about the coercion of laws under the Con- 
stitution, instead of the coercion of arms. But no such 
idea, as you suppose, was intended to be conveyed by the 
speech, and none such appears in it taken, altogether. 
Here is that speech. It was in reply to objections that 
the powers delegated by the Constitution were of them- 
selves inconsistent with the nature of a Federal Govern- 
ment. He combated that idea, and maintained that 
States, by compact, might delegate power to act directly 
upon their citizens. Here is his speech on that subject. 
"But, says the honorable objector, if Congress levies 
money, they must legislate. I admit it. Two legisla- 
tive powers, says he, cannot legislate on the same subject 
in the same place. I ask, why can they not ? It is not 
enough to say they cannot. I wish for some reason, 
grant that both cannot legislate upon the same object 
at the same time, and carry into effect laws which are 
contrary to each other. But the Constitution excludes 

* EllioVs Debates, vol. ii, p. 185-190. 



230 CONSTITUTIONAL VIEW OF THE WAR [Vol.1. 

every thing of this kind. Each LegisLature has its 
province; their Hmits may he distinguished. * * * 
Two several Legislatures have in fact existed, and acted 
at the same time, and in the same territory. It is in vain 
to say they cannot exist, when they actually have done 
it. In the time of the war, we had an army. Who 
made the laws for the army? By whose authority were 
offenders tried and executed ? Congress. By their au- 
thority a man was taken, tried, condemned, and hanged, 
in this very city. He belonged to the army ; he was a 
proper subject of military law ; he deserted to the enemy ; 
he deserved his fate."* 

In this way he maintained that there would be no 
change in principle in the operation of laws passed by 
the Congress, under the Constitution, in levying taxes 
directly upon the people, from laws that had been passed 
by the Congress, under the Confederation, in other cases. 
The great benefit that would flow from the extension, in 
the Constitution, of this principle, that had been acted 
on to a limited extent, under the Confederation, he pro- 
ceeded to explai^i with great force, and showed its per- 
fect practicability under a Federal system. The point 
was the collection of revenues by levies on the people, 
instead of requisitions on the States. Afterwards comes 
the part from which the extract you refer to is taken. 
Here is the whole of it. " Hence, we see," says he, " how 
necessary, for the Union, is a coercive principle. No 
man pretends the contrary; we all see and feel this 
necessity. The only question is, shall it be a coercion 
of law, or a coercion of arms ? There is no other pos- 
sible alternative. Where will those who oppose a coer- 
cion of law come out ? Where will they end ? A neces- 
•mry consequence of their principles is a war of the States, 

* EllioVs UibcUes, vol. ii, p. 196. 



Col. VI.] STATE RATIFICATIONS— CONNECTICUT. 2iil 

one against the other. I am for coercion by law — that 
coercion which acts only upon delinquent individuals. 
This Gonstittution does not attempt to coerce Sovereign 
bodies, States, in their 'political capacity. No coercion is 
applicable to such bodies, but that of an armed force. If 
we should attempt to execute the laws of the Union Ijy 
sending an armed force against a delinqaent State, it 
would involve the good and bad, the innocent and guilty, 
in the same calamity. But this legal coercion singles 
out the guilty individual, and punishes him for breaking 
the laws of the Union."* 

He was speaking of the great advantage that would 
result from delegating to the Congress power to pass laws 
that would operate directly upon the people, and not 
upon the States in their corporate capacities. This, he 
maintained, would be a great improvement in the Fed- 
eral system, especially in the collection of taxes. And 
he contended further, that it really involved no new 
principle ; that the Congress had, by virtue of the 
Articles of Confederation, acted upon the same principle, 
so far 05 persons in the land and naval forces loere con- 
cerned. Nothing in this speech is inconsistent with his 
aiid Mr. Sherman's joint letter to Governor Huntingdon 
touching the reserved Sovereignty of the States. Indeed, 
in this very speech, he says the Constitution does not 
attempt to coerce Sovereign bodies, States, in their po- 
litical capacity. There is no trace, in the debates in the 
Connecticut Convention, of a contrary opinion being en- 
tertained. The general doctrine of all the friends of the 
Con.-stitution in this Convention was, not only that it 
established a Federal Government, but that the rights 
of the States were amply secured by it. This vms the 



EllioVs Debates, vol. ii, p. 197. 



232 CONSTITUIIONAL VIEW OF THE WAR. [Vol. I. 

judgment of Governor Huntingdon, who was a member 
of the Convention. It was the judgment of Richard 
Law, who said : " Consider that this General Governr 
ment rests upon the State Governments for its support. 
It is like a vast and magnificent bridge, built upon thir- 
teen strong and stately pillars. Now, the rulers, who 
occupy the bridge, cannot be so beside themselves as to 
knock away the pillars which support the whole fabric."* 

Oliver Wolcott, he who was afterwards Secretary of 
the Treasury, and the devoted political friend of Mr. 
Hamilton, said : " The Constitution effectually secures 
the States in their several rights. It must secure them, 
for its own sake ; for they are the pillars which uphold 
the general system. The Senate, a constituent branch 
of the general Legislature, without whose assent no pub- 
lic act can be made, are appointed by the States, and 
will secure the rights of the several States." "So well 
guarded is this Constitution throughout, that it seems 
impossible that the rights either of tJw States or of the 
people should be destroyed." f 

This is quite enough to show what the Convention of 
Connecticut thought of the Constitution, and hence wg see 
in their ratification they use the same words ; they adopt 
it as u Constitution " for the United States of America. 

SIXTH, MASSACHUSETTS. 

Wo now come, Judge, to your State. It is te- 
dious to go through with all these dry, musty records. 
But it is essential to our investigation ; they are the 
title-deeds of our political inheritance of Constitutional 
Libeny. From them alone can we arrive at the 
truth touching the object of our inquiry. I call your 
special attention, Judge, to the action of your own 

* Elh Vs Debates, vol. ii, p. 201. f ElUoVs Debates, vol. ii, p. 201. 



OoL. TI.J STATE RATIFICATIONS— MASSACHUSETTS. 233 

State iu the premises. No better or more conclusive 
proof could be adduced to establish the fact that Massa- 
chusetts, at the time, considered the Union perfected by 
the Constitution to be a Federal one between States, 
than her own action on the adoption of it furnishes. 

First, the ratification itself. It is in these words : — 

" Commonwealth of Massachusetts. 

" The Convention having impartially discussed, and 
fully considered, the Constitution for the United States of 
America, reported to Congress by the Convention of Dele- 
gates from the United States of America, and submitted 
to us by a resolution of the General Court of the said 
Commonwealth, passed the 25th day of October, last 
past, — and acknowledging, with grateful hearts, the 
goodness of the Supreme Ruler of the Universe in afford- 
ing the people of the United States, in the course of his 
providence, an opportunity, deliberately and peaceably, 
without fraud or surprise, of entering into an explicit and 
solemn compact with each other, by assenting to and 
ratifying a new Constitution, in order to form a more 
perfect Union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote the 
g*eneral welfare, and secure the blessings of liberty to 
themselves and their posterity, — do, in the name and iu 
behalf of the people of the Commonwealth of Massachu- 
setts, assent to and ratify the said Constitution for the 
United States of America. 

"And as it is the opinion of this Convention, that certain 
amendments and alterations in the said Constitution 
would remove the fears, and quiet the apprehensions, of 
many of the good people of this Commonwealth, and 
more effectually guard against an undue administration 
of the Federal Government, — the Convention do there- 
fore recommend that the following alterations and pro- 
visions be introduced into the said Constitution : — 



234. CONSTITUTIONAL VIEW OF THE WAR. [Voi. 1 

"I. That it explicitly declare that all powers not ex- 
pressly delegated by the aforesaid Constitution are re- 
served to the several States, to be by them exercised. 

"II. That there shall be one representative to every 
thirty thousand persons, according to the census men- 
tioned in the Constitution, until the whole number of the 
representatives amounts to two hundred. 

*'III. That Congress do not exercise the powers vested 
in them by the 4 th Section of the 1st Article, but in 
cases where a State shall neglect or refuse to make the 
regulations therein mentioned, or shall make regulations 
subversive of the rights of the people to a free and equal 
representation in Congress, agreeably to the Constitution. 

"IV. That Congress do not lay direct taxes but when 
the moneys arising from the impost and excise are in- 
sufficient for the public exigencies, nor then until Con- 
gress shall have first made a requisition upon the States 
to assess, levy, and pay, their respective proportions of 
such requisition, agreeably to the census fixed in the said 
Constitution, in such way and manner as the Legislatures 
of the States shall think best; and in such case, if any 
State shall neglect or refuse to pay its proportion, pur- 
suant to such requisition, then Congress may assess and 
levy such State's proportion, together with interest there- 
op at the rate of six per cent, per annum, from the time 
of payment prescribed in such requisition. 

" V. That Congress erect no company of merchants with 
exclusive advantages of commerce. 

"VI. That no person shall be tried for any crime by 
which he may incur an infamous punishment, or loss of 
life, until he be first indicted by a grand jury, except in 
such cases as may arise in the government and regulation 
of the land and naval forces, 

"VII. The Supreme Judicial Federal Court shall have 



Col. Vl.l STATE RATIFICATIONS— MASSACHUSETTS. 235 

no jurisdiction of causes between citizens of difTerent 
States, unless the matter in dispute, whether it concerns 
the realty or personalty, be of the value of three thou- 
sand dollars at the least; nor shall the Federal Judicial 
powers extend to any actions between citizens of differ 
ent States, where the matter in dispute, whether it con 
cerns the realty or personalty, is not of the value of fifteen 
hundred dollars at least. 

" VIII. In civil actions between citizens of different 
States, every issue of fact, arising in actions at common 
law, shall be tried by a jury, If the parties, or either of 
them, request it. 

'' IX. Congress shall at no time consent that any per- 
son, holding an office of trust or profit under the United 
States, shall accept of a title of nobility, or any other 
title or office, from any king, prince, or foreign State. 

"And the Convention do, in the name and in behalf of 
the people of this Commonwealth, enjoin it upon their 
representatives in Congress, at all times, until the alternr 
tions and provisions aforesaid have been considered, 
agreeably to the fifth article of the said Constitution, to 
exert all their influence, and use all reasonable and legal 
methods, to obtain a ratification of the said alterations 
and provisions, in such manner as is provided in the said 
article. 

*'And that the United States, in Congress assembled, 
may have due notice of the assent and ratification of the 
said Constitution by this Convention, it is Resolved, That 
the assent and ratification aforesaid be engrossed on parch- 
ment, together with the recommendation and injunction 
aforesaid, and with this resolution ; and that his Excel- 
lency, John Hancock, Esqr., President, and the Hon. 
William Cushing, Esqr,, Vice President of the Conven- 
tion, transmit the same, countersigned by the Secretary 



236 CONSTITUTIONAL yiE:W OF THE WAR. [Vol.1. 

of the Convention, under their hands and seals, to the 
United States in Congress assembled."* 
v-^-^ere we see potent words! The instrument is recog- 
nized as a new Constitution ! New in contradistinction 
to the old one! That was the Articles of Confederation. 
It is distinctly declared to be a Compact to form a more 
perfect Union — a more perfect Union, of course, between 
the same parties. Those parties were the several States, 
or the people of the several States, in their Sovereign 
character. We see it was adopted as " a Constitution 
for the United States of America" — not, as I have often 
said, for the whole American people, but for the Ameri- 
can States united by the Compact. The Government, 
we see, was to be Federal. The Supreme Court of the 
United States is styled " the Supreme Judicial Federal 
Court." The whole proceedings, from beginning to end, 
show upon their face Federal action and Federal engage- 
ments. The instrument, ratified, was directed to be sent 
" to the United States in Congress assembled." But this 
is not all. The Constitution did not pass the Convention 
of Massachusetts without violent opposition. What was 
said pro and con is upon record. These sayings, at the 
time, constitute a part of the res gestoe, and are to be 
taken with it, if necessary, for a clearer explanation of 
the understanding of the Resolutions they came to. 

There were great men in that Convention, Men who 
were the lights of the age in which they lived. Samuel 
Adams, Fisher Ames, Rufus King, Theophilus Parsons, 
James Bowdoin, and John Hancock, were there. The 
questions involved were deemed of the most momentous 
character. None of greater importance had engaged the 
attention of Massachusetts' statesmen, since the ever- 



* Elliot's Debates, vol. i, pp. 322, 323. 



Col. Vr.J STATE RATIFIt^ATIONS— MASSACHUSETTS. 237 

memorable struggles over their Charter, in 1685 and 
1774, and which finallj ended in the war of the Revolu- 
tion, and establishment of the complete Independence 
and Sovereignty of the Commonwealth. By many it was 
thought, that this Sovereignty would be endangered by 
the adoption of this new Constitution. At the head of 
this class was the renowned Samuel Adams. With him, 
stood conspicuously, Singletary, Bodman, Widgery, Tay- 
lor, Nason, and Choate. 

They doubtless had in mind the insidious encroach- 
ments upon their ancient rights, by the crown of Great 
Britain, through the instrumentality of a Randolph and 
Andrews, in 1683-85. The reply of the Deputies of 
Massachusetts, to the proposition of the crown at that 
time, was not forgotten. " The civil liberties of New 
England are part of the inheritance of their fathers ; and 
shall we give that inheritance away ? Is it objected that 
we shall be exposed to greater sufferings ? Better suffer 
than sin. It is better to trust the God of our fathers, 
than to put confidence in Princes ! If we suffer, because 
we dare not comply with the wills of men against the 
A\ill of God, we suffer in a good cause, and shall be ac- 
counted Martyrs in the next generation, and at the great 
day ! The Deputies consent not, but adhere to their 
former Bills !"'■' 

They did not lose sight of the fact, that these fathers 
did become Martyrs, and that their self-sacrifice was 
amply vindicated in the Revolution of 1688, and in the 
re-establishment of their charter. It w\as also fresh in 
their minds, how like attempts to despoil them of their 
Liberties had been made in their own times by George III, 
in 1774, and how gloriously their resistance to his en- 
croachments had resulted. 



Bancroft^ vol. ii, pp. 12G, 127. 



238 CONSTITUTIONAL VIEW OF THE WAR. [Vol. L 

We can easily account, therefore, for the apprehensions 
awakened in the breasts of such men upon the presenta- 
tion of this new Constitution. On its face it did not re- 
serve expressly the Sovereignty of the States, severally, 
as the old one had done. At first a very large majority 
of the Convention were decidedly opposed to its adoption. 
The session lasted for a month lacking two days. The 
debates have been published by order of the State Legis- 
lature and make a volume of themselves. 

Secondly, then, let us sample these debates to see the 
prevailing sentiments on both sides. 

Mr. Shurtliff. " The Convention says, they aimed 
at a consolidation of the Union." 

Mr. Parsons. " The distinction is between a consoli- 
dation of the States and a consolidation of the Unicyn" 

Mr. Jones, of Boston. " The word consolidation has 
different ideas — as different metals melted into one mass, 
two twigs tied into one bundle.""^' 

Mr. Ames. " The Senators will represent the Sove- 
reignty of the States. The Representatives are to repre- 
sent the people."f 

Mr. Gore. " The Senate represents the Sovereignty 
of the States," etc. J 

Mr. Ames again observed, " that an objection was 
made against the Constitution, because the Senators are 
to be chosen for six years. It has been said, that they 
will be removed too far from the control of the people, 
and that, to keep them in proper dependence, they should 
be chosen annually. It is necessary to premise, that no 
argument against the new plan has made a deeper im- 
pression than this, that it will produce a consolidation of 
the States. This is an effect which all good men will 

* Pebates, pu])lislied by order of the State, p. 316. 

*• MlioVs Debates, vol. ii, p. 11. % EllioVs Debates, vol. ii, p. 18. 



Col. YL] STATE RATIFICATIONS— MASSACHUSETTS. 239 

deprecate. For it is obvious, that, if the State powers 
are to be destroyed, the representation is too small. The 
trust, in that case, would be too great to be confided to sf» 
few persons. The objects of Legislation would be so 
multiplied and complicated, that the Government would 
be unwieldy and impracticable. The State Governments 
are essential parts of the system, and the defence of this 
article is drawn from its tendency to their preservation. 
The Senators represent the Socereignty of the States ; in 
the other House, individuals are represented. The Senate 
may not originate bills. It need not be said that they 
are principally to direct the aifairs of wars and treaties. 
Tliey are in the quality of ambassadors of the States, and 
it will not be denied that some permanency in their office 
is necessary to a discharge of their duty. Now, if they 
were chosen yearly, how could they perform their trust ? 
If they would be brought by that means more imme- 
diately under the influence of the people, then they will 
represent the State Legislatures less, and become the rep- 
resentatives of individuals. This belongs to the other 
House. The absurdity of this, and its repugnancy to the 
Federal principles of the Constitution, will appear more 
fully, by supposing that they are to be chosen by the 
people at large. If there is any force in the objection to 
this article, this would be proper. But whom, in that 
case, would they represent ? — Not the Legislatures of the 
States, but the people. This would totally obliterate 
the Federal features of the Constitution. What would 
become of the State Governments, and on whom Avould 
devolve the duty of defending them against the encroach- 
ments of the Federal Government ? A consolidation of 
the States would ensue, which, it is conceded, would sub- 
vert the Jieio Constitution, and against which this very 
article, so much condennied, is our best security. Too 



240 CONSTITUTIONAL VIEW OF THE WAR. [Vol. L 

much provision cannot be made against a consolidation. 
The State Governments represent the wishes, and feel- 
ings, and local interests, of the people. They are the 
safeguard and ornament of the Constitution; they will 
protract the period of our liberties ; they will afford a 
shelter against the abuse'of power, and will be the natural 
av^igers of our violated rights. 

" A very effectual check upon the power of the Senate 
is provided. A third part is to retire from office every 
two years. By this means, while the Senators are seated 
for six years, they are admonished of their responsibility 
to the State Legislatures. If one third new members ai-e 
introduced, who feel the sentiments of their States, they 
will awe that third whose term will be near expiring 
This article seems to be an excellence of the Constitution, 
and affords just ground to believe that it will be, in prac-^ 
tice as in theory, a Federal Eepuhlic."'^- 

Mr. Bodman (in speaking of the clause conferring the 
general powers of the Congress in levying and collecting 
taxes, etc.,) remarked, "It had been said that the Sove- 
reignty of the States remains Avith them. He thought 
this section endangered that Sovereignty, and the powers 
in that section ought to have been more clearly defined, 
as to the right or power of the Government to use force 
in collecting the taxes, etc."-|' 

Mr. Singletary "Thought that no more power could be 
given to a despot than to give up the purse strings of 
the people. "J 

Mr. Choate. ''Gentlemen say this section (8th, giving 
general powers to Congress) is as clear as the sun, and 
that all power is retained that is not given. But where 



* EllioVs Debates, vol. ii, p. 45 et seq. Debates published by order of 
Massachusetts Legislat'urc, pp. 144, 145. 
i Mass. Debates, p. 159. t 3fass. Debates, p. 159. 



Col. YL] STATE RATIFICATIONS— MASSACHUSETTS. 241 

is the Bill of Rights, which shall check the power of 
Congress ; which shall say, thus far shall ya come, and 
no farther."'^ 

Mr. Porter asked " If a better rule of yielding powei 
could be shown than in the Constitution ; for what we do 
not give," said he, "we retaiu."f 

Mr. Sumner. "But some gentlemen object further 
and say the delegation of these great powers will destroy 
the State Legislatures ; but, I trust, this never can take 
place, for the General Government depends on the State 
Legislatures for its very existence. The President is to 
be chosen by Electors, under the Regulations of the State 
Lesrislatures. The Senate is to be chosen bv the State 
Legislatures, and the Representative body by the people, 
under like Regulations of the Legislative body in the 
different States. If gentlemen consider this, they will, 
I presume, alter their opinion; for nothing is clearer 
than that the existence of the Legislatures in the 
diilierent States, is essential to the very being of tlie 
General Government. I hope, sir, we shall all see the 
necessity of a Federal Government, and not make ob- 
jections unless they appear to us to be of some weight."J 

Mr. Parsons, after speaking of the several kinds of 
Government, said, " The Federal Constitution establishes 
a Government of the last description, and, in this case, 
the ]Deople dii-est themselves of nothing! The Govern- 
ment, and the powers which the Congress can admin- 
ister, are the mere residt of a Compact, etc. '^' * * 

" But if gentlemen will still insist that these powers 
are a grant from the people, and, consequently, im- 
proper, let it be observed that it is now too late to 
impede the grant. It is already completed. The Con- 

* Mass. Debates, p. 180. f Mass. Debates, p. 159. 

X Mass. Debates, p. 1G2. 

16 



242 CONSTITUTIONAL VIEW OP THE WAR. [Vol, I 

gress, under the Confederation, are already invested with 
it by solemn Compact. They have power to demand 
what moneys and forces they judge necessary, for the 
common defence, and general welfare. Pbwers as exten- 
sice as those i^roposed in this Constitution. * * * 

" It has been objected that we have no Bill of Rights. 
If gentlemen, who make this objection, would consider 
what are the supposed inconveniences resulting from a 
want of a declaration of rights, I think they would soon 
satisfy themselves that the objection has no weight. Is 
there a single natural right that we enjoy uncontrolled 
by our own Legislature, that Congress can infringe ? 
Not one ! Is there a single ijolitical right secured to lis, 
hy our Constitution, against the attempts of our own 
Legislature, which we are deprived of in this Constitu- 
tion ? Not one that I can recollect."* 

Mr. Rufus King (who had been in the Philadelphia 
Convention and who was, while the question was open, for 
a National Government proper instead of a Federal one) 
said: 

" To conclude, sir, if we mean to support an efficient 
Federal Government, which, under the old Confederation, 
can never be the case, the proposed Constitution is, in my 
opinion, the only one that can be sidjstituted"-\- 

It was on the 30th of January, after the Convention 
had been in session for three weeks, and after it was well 
ascertained that the Constitution could not get the ap- 
proval of a majority of that body without some declara- 
tion accompanying it setting forth the understanding with 
which it was adopted, that John Hancock, the President, 
left the chair and offered his proposition, which was, in 
substance, for its adoption in the form in which it stands. 



Mess. Debates, p. 199. t EllioVs Debates, vol. ii, p. 57. 



Coi,. VI.] STATK R.VTIFICATIONS— MASSACHUSETTS. 2-1:3 

After this proposition was so brought forward, the 
venerable Samuel Adams, and quite a number with him, 
yielded their former opposition. He expressed himself 
thus : — 

•'As your Excellency was pleased yesterday to offer, 
for the consideration of this Convention, certain proposi- 
tions intended to accompany the ratitication of the Con- 
stitution before us, I did myself the lionor to bring them 
forward by a regular motion, not only from the respect 
due your Excellency, but from a clear conviction, in my 
own mind, that they would tend to effect the salutary 
and important purposes which you had in view — 'the 
removing the fears and quieting the apprehensions of 
many of the good people of this Commonwealth, and the 
more effectually guarding against an undue administra- 
tion of the Federal Government.' 

"I beg leave, sir. more particularly to consider those 
propositions, and, in a very few words, to express my own 
opinion, that they must have a strong tendenc}' to ease 
the minds of gentlemen who wish for the immediate 
operation of some essential parts of the proposed Consti- 
tution, as well as the most speedy and effectual means 
of obtaining alterations in some other parts of it, which 
they are solicitous should be made. I will not repeat 
the reasons I offered when the motion was made, which 
convinced me that the measure now under consideration 
will have a more speedy, as well as a more certain influ- 
ence, in effecting the purpose last mentioned, than the 
measure proposed in the Constitution before us. 

''Your Excellency's first proposition is, 'that it be ex- 
plicitly declared, that all powers not expressly delegated 
to Congress are reserved to the several States, to l^e by 
them exercised.' This appears, to my mind, to Ije a 
mimmary of a hill of riylits, which gentlemen are anxious 



244 CONSTITUTIONAL VIEW OF THE WAR. [Yol. 1 

to obtain. It removes a doubt which many have enter- 
tained respecting the matter, and gives assurance that, 
if any law made by the Federal Government shall be 
extended beyond the power granted by the j^roposed 
Constitution and inconsistent with the Constitution of 
this State, it will be an error, and adjudged by the 
courts of law to be void. It is consonant with the second 
article in the present Confederation, that each state re- 
tains its Savei^eignty , freedom, and independence, and 
every power, jurisdiction, and right, which is not, by 
this Confederation, expressly delegated to the United 
States in Congress assembled. I have long considered 
the watchfulness of the people over the conduct of their 
rulers the strongest guard against the encroachments of 
power; and I hope the people of this country will always 
be thus watchful."* 

Amongst others, Fisher Ames followed, in a speech of 
some length, in which he said : 

" There was not any Government, which he knew to 
subsist, or which he had ever heard of, that would bear 
a comparison with the new Constitution. Considered 
merely as a literary performance, it was an honor to our 
country : Legislators have at length condescended to 
speak the language of philosophy; and, if we adopt it, 
we shall demonstrate to the sneering world, who deride 
libf;rty, because they have lost it, that the principles of 
oui Government are as free as the spirit of our people. 

^* I repeat it, our debates have been profitable, because, 
upon every leading point, we are at last agreed. Very 
few among us now deu}^ that a Federal Government is 
necessary to save us from ruin ; that the Confederation 
is not that Government ; and that the proposed Constitu- 
tution, connected with the amendments, is worthy of 

* EllioVs Debat-.s, vol. ii, pp. 130, 131. 



Col. VI.] STATE RATIFICATIONS— MASSACHUSETTS. 2-15 

being adopted. The question recurs, Will tlie amend- 
ments prevail, and become part of the sj t^tem ? In order 
to obtain such a system, as the Constitution and the 
amendments, there arq but three ways of proceeding — to 
reject the whole, and begin anew ; to adopt this phfti, 
upon condition that the amendments be inserted into it ; 
or to adopt his Excellency's proposition."* 

President Hancock concluded the debate. " I give 
my assent," said he, " to the Constitution, in full confi- 
dence that the amendments proposed will soon become a 
jDart of the system. These amendments, being no wise 
local, but calculated to give security and ease alike to 
all the States, I think that all will agree to them." 

The Constitution was then ratified, as we have seen, 
by onl}^ nineteen majority. The whole number of the Con- 
vention was three hundred and fifty-five. 

Governor Hancock, in his message to the Legislature, 
27th February, 1788, communicating the action of th« 
Convention, said : 

" The objects of the proposed Constitution are, defence 
against external enemies, and the promotion of tran- 
quillity and happiness amonyst the States. * * * 

" The amendments proposed by the Convention are 
intended to obtain a Constitutional securit}^ of the prin- 
ples to which they refer themselves, and must meet the 
wishes of all the States. I feel myself assured, that 
they will very early become a part of the Constitution, 
and when they shall be added to the proposed plan, I 
shall consider it the most perfect system of Governmen t, 
as to the objects it embraces, that has been known 
amongst mankind."-}* 

With this record in hand, who can doubt as to how 

* EllioVs Debates, Massachusetts Convention, vol. ii, pp. 155, 156. 
\ Maamdu setts Debates, published by order of the Legislature. 



246 CONSTITUTIONAL VIEW OF THE WAll. [Vol. I. 

Massachusetts understood what she was domg? Is it 
not clear, beyond question, that she ratified the new Con- 
stitution in phace of the old ? That she considered it a 
Compact, between States, as much as the Articles of Con- 
federation ? Was there a single supporter or advocate 
of it in the Convention, who did not hold it to be strictly 
Federal in its character ? Did they not all understand its 
great object to be, as Governor Hancock said, defence 
against foreign enemies, and the promotion of tranquil- 
lity and happiness amongst States ? Were not all their 
apprehensions quieted by the early adoption of their first 
great amendment, and nearly all the rest? Can there 
be a reasonable doubt on the question ? 

But we will proceed to the next State in order. 

SEVENTH, MARYLAND. 

The action of the State of Maryland is recorded in 
these words: 

" In Convention of the Delegates, of the people of the 
State of Maryland, April 28, 1788. 

" We, the Delegates of tlic people of the State of Mary- 
land, having fully considered the Constitution of the 
United States of America, reported to Congress, by the 
Convention of Deputies, from the United States of Amer- 
ica, held in Philadelphia, on the 17th day of September, 
in the year 1787, of which the annexed is a copy, and 
submitted to us by a resolution of the General Assembly 
of Maryland, in November Session, 1787, do, for our- 
selves, and in the name, and on behalf of the people of 
tliis State, assent to, and ratify the said Constitution. 

" In witness whereof, we have hereunto subscribed our 
names."* 

In this State there was no material division of senti- 

*EllioVs Debates, vol. i, p. 324. 



Col. v.] state EATIFICATIONS— SOUTH CAROLINA. 247 

ment. There was little or no discussion. The vote on 
it was sixty-three to eleven.'^ It was simply assented to, 
and ratified as the " Constitution of the United States of 
America." The Conve^ition of Maryland styled it a Con- 
stitution of States. 

EIGHTH, SOUTH CAROLINA. 

The next State, in order, is South Carolina. First, as 
to the action of her Convention. That is set forth in 
these words : 

'' In Convention of the people of the State of Soath 
Carolina, by their representatives, held in the City of 
Charleston, on Monday, the 12tli day of May, and con- 
tinued by divers adjournments to Friday, the 23d day of 
May, Anno Domini, 1788, and in the twelfth year of the 
Independence of the United States of America. 

'' The Convention, having maturely considered the 
Constitution, or form of Government, reported to Con- 
gress by the Convention of Delegates from the United 
States of America, and submitted to them by a resolu- 
tion of the Legislature of this State, passed the 17th and 
IStli days of February last, in order to form a more per- 
fect Union, establish justice, insure domestic tranquillity, 
provide for the common defence, promote the general 
welfare, and secure the blessings of liberty to the people 
of the said United States, and their posterity, — Do, in 
the name and behalf of the people of this State, hereby 
a^ssent to and ratify the said Constitution. 

" Done in Convention, the 23d day of May, in the 
year of our Lord, 1788, and of the Independence of the 
United States of America the twelfth. 

'^^And whereas, it is essential to the preservation of the 

* ElliutVs Debates, vol, ii, p. 549. 



248 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1 

rights reserved to the several States, and the freedom of 
the people, under the operations of a General Government, 
that the right of prescribing the manner, time, and places 
of holding the elections to the Federal Legislaure, should 
be forever inseparably annexed to the Sovereignty of the 
several States, — This Convention doth declare, that the 
same ought to remain, to all posterity, a perpetual and 
fundamental right in the local, exclusive of the interfer- 
ence of the General Government, except in cases where 
the Legislatures of the States shall refuse or neglect to 
perform and fulfil the same, according to the tenure of 
the said Constitution. This Convention doth also declare, 
that no section or paragraph of the said Constitution 
warrants a construction, that the States do not retain 
ever}'' power not expressly relinquished by them, and 
vested in the General Government of the Union. 

^^Resolved, That the General Government of the United 
States ought never to impose direct taxes, hut where the 
moneys arising from the duties, imposts, and excise, are 
insufiicient for the public exigencies, nor tlien until Con- 
gress shall liave made a requisition upon the States to 
assess, levy, and pay, their respective proportions of such 
requisitions ; and in case any State shall neglect or refuse 
to pay its proportion, pursuant to such requisition, then 
Congress may assess and levy such State's proportion, 
together Avith interest thereon, at the rate of six per 
centum per annum, from the time of payment prescribed 
by such requisition. 

'^Eesolved, That the third section of the sixth article 
ought to be amended by inserting the word ' other' be- 
tween the words 'no' and 'religious.' 

'''Resolved, That it be a standing instruction to all such 
Delegates as may hereafter be elected to represent this 
State in the General Government, to exert their utmost 



Col. VI.] STATE KATIFICATIONS— SOUTH CAROLINA. 249 

abilities and influence to effect an alteration of the Con- 
stitution, conformably to the aforegoing resolutions. 

" Done in Convention, the 23d day of May, in the 
year of our Lord, 1788, and of the Independence of the 
United States of America the twelfth."''' 

In these proceedings we see, clearl^^, that the undei 
standing was that the Constitution was Federal in its 
character. The Congress is styled " The Federal Legis- 
lature," and, in the accompanying paper, proposing 
amendments, the reserved Sovereignty of the several 
States is mentioned as a matter understood, and an 
express declaration that the Constitution had been 
assented to and ratified, with the understanding that no 
section or paragraph of the Constitution warranted a con- 
struction that the States did not retain every power not 
expressly relinquished by them. This was in the nature 
of a Protocol, which went up with the paper, forever 
fixing the understanding of the State, with which she had 
entered into the Compact, and the understanding with 
which her ratification was accepted by the other States. 

Secondly, let us look into the debates. Very few 
speeches, made in this Convention, have been preserved. 
No one disputed the character of the Government. 
The speeches related, mostly, to particular powers dele- 
gated. From one of them we perceive, however, that 
there was spirited opposition made by a respectable 
minority. This was headed by Patrick Bollard, of 
Prince Fredericks. He said, " My constituents are 
highly alarmed at the large and rapid strides which 
this new Government has taken towards despotism. 
They say it is big with political mischiefs, and pregnant 
with a greater variety of impending woes to the good 

* Elliot's Debates, vol. i, p. .325. 



250 CONSTITUTIONAL YIEW OF THE WAR. [Vol. I 

people of the Southern States, especially South Carolina, 
than all the plagues supposed to issue from the poisonous 
box of Pandora !"'^' 

On the question of ratification, the vote stood 149 
to 73. 

The most important debate in South Carolina, on the 
Constitution, was in the Legislature, on the proposition 
to call a Convention to take it into consideration. In 
this body, as in the Convention, there was a respectable 
and spirited minority against the Constitution, though 
the call for a Convention was unanimous. In the 
debate on that question, Hon. Rawlins Lowndes con- 
cluded his speech by saying " He wished for no other 
epitaph, than to have inscribed on his tomb, ' Here lies 
the man that opposed the Constitution, bec?use it was 
ruinous to the liberty of America!' ""j* 

These apprehensions and forebodings were, doubtless, 
awakened by the utterance of such sentiments as those 
vfhicli fell from General Pinckney, in this discussion, 
which Judge Story quotes. He did maintain that the 
States, severally, were never Sovereign, but in this 
position he was not sustained, either by the Legislature, 
or the Convention, as we have have seen by the Protocol 
af the latter. 

NINTH, NEW HAMPSHIRE. 

The next State, in order, is New Hampshire. Her 
action is set forth in the following words : 

" Li Convention of the Delegates of the People of the 
State of New Hampshire, June the 2Lst, 1788. 

" The Convention, having impartially discussed and 
fully considered the Constitution for the United States 
of America, reported to Congress by the Convention 

* EllioVs Debates, vol. iv, p. 337. f EllioVs Debates, vol. iv, p. 313 . 



Col. YI.] state KATIFICATIONS— NEW HAMPSHIRE. 251 

of Delegates from the United States of America, and sub- 
mitted to us by a resolution of the General Court of said 
State, passed the 14th day of December last past, and 
acknowledging, with grateful hearts, the goodness of 
the Supreme Ruler of the Universe in afibrding the 
people of the United States, in tlie course of His provi- 
dence, an opportunity, deliberately and peaceably, with- 
out fraud or surprise, of entering into an explicit and 
solemn compact with each other, by assenting to and 
ratifying a new Constitution, in order to form a more 
perfect Union, establish Justice, insure domestic tran- 
quillitj', provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to 
themselves and their posterity, — Do, in the name and 
behalf of the people of the State of New Hampshire, 
assent to and ratify the said Constitution for the United 
States of America. And as it is the opinion of this 
Convention, that certain amendments and alterations, 
in the said Constitution would remove the fears and 
quiet the apprehensions of many of the good people of this 
State, and more eflectually guard against an undue admin- 
istration of the Federal Government, — The Convention 
do, therefore, recommend that the following alterations 
and provisions be introduced in the said Constitution : — 

" I. That it be explicitly declared that all powers 
not expressly and particularly delegated by the aforesaid 
Constitution, are reserved to the several States, to be 
by them exercised. 

" II. That there shall be one representative to every 
thirty thousand persons, according to the census men- 
tioned in the Constitution, until the whole numl)er of 
representatives amount to two hundred. 

" III. That Congress do not exercise the powers vested 
in them, by the fourth section of the first article, but in 



252 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I, 

cases when a State shall neglect or refuse to make the 
regulations therein mentioned, or shall make regulations 
subversive of the rights of the people to a free and e pial 
representation in Congress; nor shall Congress in any 
case make regulations contrary to a free and equal repre- 
sentation. 

" IV. That Congress do not lay direct taxes, but when 
the moneys arising from impost, excise, and their other 
resources, are insufficient for the public exigencies; nor 
then, until Congress shall have first made a recpaisition 
upon the States to assess, levy, and pay, their respective 
proportions of such requisition, agreeably to the census 
fixed in the said Constitution, in such way and manner 
as the Legislature of the State shall think best ; and in 
such case, if any State shall neglect, then Congress may 
assess and levy such State's proportion, together with the 
interest thereon, at the rate of six per cent, per annum, 
from the time of payment prescribed in such requisition. 

" V. That Congress shall erect no company of mer- 
chants with exclusive advantages of commerce. 

" VI. That no person shall be tried for any crime, by 
which he may incur an infomous punishment, or loss of 
life, until he first be indicted by a grand jury, except 
in such cases as may arise in the Government and regu- 
lation of the land and naval forces. 

" VII. All common-law cases, between citizens of dif- 
ferent States, shall be commenced in the common law 
courts of the respective States ; and no appeal shall be 
allowed to the Federal court, in such cases, unless the 
sum or value of the thing in controversy amount to three 
thousand dollars. 

•' VIII. In civil actions, between citizens of different 
States, every issue of fact, arising in actions at common- 
law, shall be tried by jury, if the parties, or either of 
them, request it. 



Col. VI.] STATE RATIFICATIONS— NEW HAMPSHIRE. 253 

*' IX. Congress shall at no time consent that an}' per- 
son, holding an office of trust or profit under the United 
States, shall accept any title of nobility, or any other 
title or ofhce, from any king, prince, or foreign State. 

" X. That no standing arm}' shall be kept up in time 
of peace, unless with the consent of three fourths of the 
members of each branch of Congress ; nor shall soldiers, 
in time of peace, be quartered upon private houses, with- 
out the consent of the owners. 

" XI. Congress shall make no laws touching religion, 
or to infringe the rights of conscience. 

" XII. Congress shall never disarm any citizen, unless 
such as are or have been in actual rebellion. 

" And the Convention do, in the name and in behalf of 
the people of this State, enjoin it upon their representa- 
tives in Congress, at all times, until the alterations and 
provisions aforesaid have been considered, agreeably to 
the fifth article of the said Constitution, to exert all their 
influence, and use all reasonable and legal methods, to 
obtain a ratification of the said alterations and provisions, 
in such manner as is provided in the article. 

" And that the United States, in Congress assembled, 
may have due notice of the assent and ratification of the 
said Constitution by this Convention, it is Resolved, That 
the assent and ratification aforesaid be engrossed on parch- 
ment, together with the recommendation and injunction 
aforesaid, and with this resolution ; and that John Sulli- 
van, Esqr., President of the Convention, and John Lang- 
don, Esqr., President of the Statt, -"ransmit the same, 
countersigned by the Secretary of Convention, and the 
Secretary of State, under their hands and seals, to the 
United States in Congress assembled. '"=' 



EllioVs Debate.'^, vol. i, pp. 325-327. 



254 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

New Hampshire followed the precedent of Massachu- 
setts, and adopted her form of proceedings throughout, in 
almost the same words. No farther comment is necessary 
on these. What has just been said on the Massachusetts 
ratification is applicable with all its force to that of New 
Hampshire. But one speech, made in the Convention of 
this State, has been preserved, and that throws no light 
upon the object of our inquiry. The action of the Con- 
vention, however, abundantly shows that the new Con- 
stitution was understood to be Federal it its character as 
the old one was. 

TEXXn, VIRGINIA. 

We come now to Virginia, the mother of States, as she 
has properly been called. 

First, we will look into her action, then into the de- 
bates. 

The words of her ratification are as follows : — 

" We, the Delegates of the people of Virginia, duly 
elected in pursuance of a recommendation from the Gene- 
ral Assembly, and now met in Convention, having fully 
and freely investigated and discussed the proceedings of 
the Federal Convention, and being prepared as well as 
the most mature deliberation hath enabled us, to decide 
thereon, — Do, in the name and in behalf of the people 
of Virginia, declare and make known, that the powers 
granted under the Constitution, being derived from the 
people of the United States, may be resumed by them, 
whensoever the same shall be perverted to their injury 
or oppression, and that every power not granted thereby 
remains with them, and at their wall; that, therefore, no 
right, of any denomination, can be cancelled, abridged, 
restrained, or modified, by the Congress, by the Senate 
or House of Representatives, acthig in any capacity, by 



Ooi, VI.] STATE RATIFICATIONS— VIRGINIA. 255 

the President, or any department or officer of the United 
Staies, except in those instances in which power is given 
by the Constitution for those purposes ; and that, among 
other essential rights, the Hberty of conscience, and of 
the press, cannot be cancelled, abridged, restrained, or 
modified, by any authority of the United States. With 
these impressions, with a solemn appeal to tlie Searcher 
of all hearts for the purity of our intentions, and under 
the conviction that whatsoever imperfections may exist 
in the Constitution ought rather to be examined in the 
mode prescribed therein, than to bring the Union into 
danger by a delay with a hope of obtaining amendments 
previous to the ratifications, — We, the said Delegates, in 
the name and in behalf of the people of Virginia, do, by 
these presents, assent to and ratify the Constitution recom- 
mended, on the 17th day of September, 1787, by the 
Federal Convention, for the Government of the United 
States, hereby announcing to all those whom it may con- 
cern, that the said Constitution is binding upon the said 
people, according to an authentic copy hereto annexed, 
in the words followino;. 

"Done in Convention, ihis 26th day of June, 1788."* 
The language here used by the Convention of Virginia, 
in her adoption of the Constitution, styles the instrument 
a Constitution "for the Government of the United States." 
The form of expression is the same as that used by 
Georgia. The meaning is the same in both. It was to 
be a Constitution for the Government of States in their 
foreign and inter State affairs. It is to be noted that in 
it they expressly declare and make known that the powers 
granted under it may be resumed by them whensoever 
Qiey may be perverted to their injury. 

Judge Btnum. Tlie language is, that the powers granted 

* MlioVs Debates, vol, i, p. 327. 



256 CONSTITUTIONAL VIEW OF THE WAR. [Vol. L 

under it being derived from the 'people of the United 
States, may be resumed by them. How does that mean 
that the people of Virginia can resume these powers by 
themselves ? 

Mr. Stephens. The meaning of the people of the United 
States here, is, the people of the States severally. This 
is clear. The delegation of the powers was by the States 
severally. Whoever delegates can resume. The right 
to resume or recall attends all delegations of all sorts. 
Where there is a separate or several delegation there can- 
not be a joint resumption. The resumption must be by 
the party nuxkiiig the delegation. But the debates in 
the Convention remove all doubts as to their understand- 
ing upon this point. These are the res gestce that fully 
explain it. 

Secondly, then, let us look into the debates. 

In Virginia, as in Massachusetts, the Constitution un- 
derwent a tliorough discussion. The Convention M^as in 
session nearly a month. Many of the ablest men of the 
State were members of it. Men who had first put the 
ball of the Revolution in motion. Patrick Henry was 
there. George Mason, Bush rod Washington, Henry Lee 
of Westmoreland, George Nicholas, Ednumd Pendleton, 
Edmund Randolpli, James Monroe, James Madison, and 
John Marshall. A brighter galaxy of talent, statesman- 
ship and oratory was never assembled in the Old Do- 
minion. The debates fill a large volume by themselves. 
Here it is. Let us glean from these discussions the lead- 
ing ideas of the advocates as ^vell as the opponents of 
the Constitution on the main point of our inquiry, that is, 
the nature and character of the Government instituted by 
it. As in Massachusetts, so in Virginia, the opposition 
was able and formidable. The greatest orator of the age 
headed it. 



Col. VI-l STATE RATIFICATIONS— VIRCINIA. 2c7 

" This proposal of altering our Federal Government," 
said Patrick Henry, "is of a most alarming nature! 
Bltike the best of this new Government — say it is com- 
posed by any thing but inspiration — you ought to be 
extvemely cautious, watchful, jealous ' of your liberty ; 
for, instead of securing your rights, you may lose them 
forever." * * 

" I have the highest veneration for those gentlemen : 
but, sir, give me Ijave to demand, What right had they 
to say, ' We, the jjeojjle f My political curiosity, exclusive 
of my anxious solicitude for the public welfare, leads me 
to ask, who authorized them to speak the language of, 
' We, the people,' instead of, ' We, the States ?' States are 
the characteristics and the soul of a Confederation ! If 
the States be not the agents of this Compact, it must be 
one great, consolidated, National Government, of all the 
States !"* 

Edmund Pendleton, President of the Convention, an- 
swered : " ' We, the people,' possessing all power, form a 
Government, such as we think will secure happiness : 
and suppose, in adopting this plan, we should be mis- 
taken in the end ; where is the cause of alarm on that 
quarter? In the same plan we point out an easy and 
quiet method of reforming what may be found amiss 
No, but, say gentlemen, we linve put the introduction of 
that method in the liands of our servants, who will inter- 
rupt it from motives of self-interest. What then ? We 
will resist, did my friend say ? conveying an idea of force. 
Who shall dare to resist the people ? No, we will assem- 
ble in Convention ; icholly recall our delegated powers, or 
reform them so as to prevent such abuse." * * * 

" This is the only Government founded in real Compact. 

* EllioVs Debates, vol. iii, pp 21-22. 
17 



258 (CONSTITUTIONAL VIEW OF THE WAR. [Voi. I 

There is no quarrel between Government and liberty ; 
the former is the shield and protector of the latter."* 

" This Constitution is said to have beautiful features," 
said Mr. Henry, subsequently, " but, when I come to 
examine these features, sir, they appear to me horribly 
frightful! Among other deformities, it has an awful 
squinting; it squints towards monarchy; and does not 
this raise indignation in the breast of every true 
American ?"f 

" We are told," said he, " that this Government, col- 
lectively taken, is without an example ; that it is National 
in this part, and Federal in that part, etc. We maj be 
amu,sed, if we please, by a treatise of political anatomy. 
In the brain it is National ; the stamina are Federal ; 
some limbs are Federal, others National. The Senators 
arc voted for by the State Legislatures ; so far it is Fede- 
ral. Individuals choose the Members of the first branch; 
here it is National. It is Federal in conferring general 
powers, but National in retaining them. It is not to be 
supported by the States ; the pockets of individuals are 
to be searched for its maintenance. What signifies it to 
me that you have the most curious anatomical descrip- 
tion of it in its creation ? To all the common purposes 
of legislation, it is a great Consolidation of Government. 
You are not to have the right to legislate in any but 
trivial cases ; you are not to touch private contracts ; you 
are not to have the right of having arms in your own 
defence; you cannot be trusted with dealing out justice 
between man and man. What shall the States have to 
do ? Take care of the poor, repair and make highways, 
erect bridges, and so on, and so on ? Abolish the State 
Legislatures at once. What purposes should they be 

* EIUoVs Debates, vol. iii, p. 37. 
t EllioVs Debates, vol. iii, i). 58. 



Coi.. VI.] STATE RATIFICATIONS— VIRGINIA. 259 

continued for ? Our Legislature ^vill, indeed, be a ludic- 
rous spectacle — one hundred and eighty men marching 
in solemn, farcical procession, exhibiting a mournful 
proof of the lost liberty of their country, without the 
power of restoring it. But, sir, we have the consolation 
that it is a mixed Government; that is, it may work 
sorely on your neck, but you will have some comfort by 
saying, that it was a Federal Government in its origin. 

" I beg gentlemen to consider : lay aside yoxiT preju- 
dices. Is this a Federal Gocemment ? Is it not a consoli- 
dated Government for almost every purpose ? Is the Gov- 
ernment of Virginia a State Government after this Govern- 
ment is adopted ? I grant that it is a republican Govern- 
ment, but for what purposes ? For such trivial domestic 
considerations as render it unworthy the name of a Legis- 
lature. I shall take leave of this political anatomy, by 
observing that it is the most extraordinary that ever 
entered into the imagination of man. If our political 
disetises demand a cure, this is an unheard-of medicine. 
The honorable member, I am convinced, wanted a name 
for it. Were your health in danger, would you take new 
medicine ? I need not make use of these exclamations ; 
for every member in this committee must be alarmed at 
making new and unusual experiments in Government. ""''■ 

Mr. Lee answered : " But, sir, this is a Consolidated 
Government, he tells us ; and most feelingly does he dwell 
on the imaginary dangers of this pretended ConsolidatioUo 
I did suppose that an honorable gentleman, whom I do 
not now see (Mr. Madison), had placed this in such a 
clear light that every man would have been satisfied 
with it. 

" If this were a consolidated Government, ought it not 

* EllioVs Debates, vol. iii, pp. 171-172. 



260 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I 

to be ratified by a majority of the xDcople as inflividiials, 
and not as /States? Suppose Virginia, Connecticut, Massa- 
chusetts, and Pennsylvania, had ratified it; these four 
States, being a majority of the people of America, would, 
by their adoption, have made it binding on all the States. 
had this been a Consolidated Government. But it is only 
the Governments of those seven States who have adopted 
it. If the honorable gentleman will attend to this, we 
shall hear no more of Consolidation." * =5= * 

" I say, that this new system shows, in stronger terms 
than words could declare, that the lilDcrties of the people 
are secure. It goes on the principle that all power is in 
the people, and that rulers have no powers but what are 
enumerated in that paper. When a question arises Avith 
respect to the legality of any power, exercised or assumed 
by Congress, it is plain on the side of the governed : Is it 
enumerated in the Comtitution? If it be, it is legal and 
just. It is otherwise arbitrary and unconstitutional. 
Candor must confess that it is infinitely more attentive 
to the liberties of the people than any State Government. 

" [Mr. Lee then said, that, under the State Govern- 
ments, the people reserA'ed to themselves certain enume- 
rated rights, and that the rest were vested in their rulers; 
that, consequently, the powers reserved to the people 
were but an inconsiderable exception from what were 
given to their rulers ; l)ut that, in the Federal Govern- 
ment, the rulers of the people were vested with certain 
defined powers, and that what were not delegated to those 
rulers were retained by the people. The consequence of 
this, he said, was, that the limited powers were only an 
exception to those which rested in the people, and that 
they knew what they had given up, and could be in no 
dan^-er. He exemplified the proposition in a famihar 
manner. He observed, that, if a man delegated certain 



Col. VI.] STATE RATIFICATIONS— VIRGINIA. 261 

powers to an agent, it would be an insult upon common 
sense to suppose that the agent could legally transact any 
business for his principal which was not contained in the 
commission whereby the powers were delegated ; but that 
if a man empowered his representative or agent to trans- 
act all his business except certain enumerated parts, the 
clear result was, that the agent could lawfully transact 
every possible part of his principal's business, except the 
enumerated parts; and added, that these plain proposi- 
tions were sufficient to demonstrate the inutility and folly 
(were he permitted to use the expression) of bills of 
rights.] "=•■= 

Governor Randolph, who had favored a National Gov- 
ernment in the Convention, replied as follows : " The 
liberty of the press is supposed to be in danger. If this 
were the case, it would produce extreme repugnancy in 
my mind. If it ever will be suppressed in this country, 
the liberty of the people will not be far from being sacri- 
ficed. Where is the danger of it ? He says that every 
power is given to the General Government that is not 
reserved to the States. Pardon me if I say the reverse 
of the proposition is true. I defy any one to prove the 
contrary. Every power not given it by this system is 
left with the States. "f 

John Marshall (afterwards Chief Justice), in reply to 
Mr. Henry, said : " We are threatened with the loss of 
our liberties by the possible abuse of power, notwithstand- 
ing the maxim, that those who give may take away. It 
is the people that give power, and can take it hack. What 
shall restrain them ? They are the masters who give it, 
and of whom their servants liolcl ^^."J 

George Nicholas said : " But it is objected to for want 

* ElUoVs Bfhates, vol. iii, p. 186. f EllioVs Debates, vol iii, p. 203. 
X MlluVb JJtbatCb, vol. iii, p. 233. 



262 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

of a bill of rights. It is a principle universally agreed 
upon, that all powers not given are retained. Where, 
by the Constitution, the General Government has general 
powers for luiy purpose, its powers are absolute. Where 
it has powers with some exceptions, they are absolute 
only as to those exceptions. In either case, the people 
retain what is not conferred on the General Government, 
as it is by their positive grant that it has any of its 
powers. In England, in all disputes between the king 
and people, recurrence is had to the enumerated rights 
of the people, to determine. Are the rights in dispute 
secured ? Are they included in Magna Charta, Bill of 
Rights, etc. ? If not, they are, generally speaking, wdthin 
the king's prerogative. In disputes between the Congress 
and the people, the reverse of the proposition holds. Is 
the disputed right enumerated ? If not, Congress cannot 
meddle with it." * ^^ '"' 

" Mr. Nicholas concluded, by making a few observa^ 
tions on the general structure of the Government, and its 
probable happy operation. He said tliat it was a Gov- 
ernment calculated to suit almost any extent of territory. 
He then quoted the opinion of the celebrated Montes- 
quieu, from vol. i, b. 9, where that writer speaks of a 
Confederate Republic as the only safe means of extending 
the sphere of a Republican Government to any consider- 
able degree."''' 

Mr. Madison said : " The powers of the General Gov- 
ernment relate to external objects, and are but few. But 
the powers in the States relate to those great objects 
w hich immediately concern the prosperity of the people. 
Let us observe, also, that the powers in the General Gov- 
-^.rnment are those which will be exercised mostly in time 



MlioVs Debates, vol. iii, p. 247. 



Coi,. YL] STATE RATIFICAl IONS-VIRGINIA. 263 

of war, while those of the State Governments will be ex- 
ercised in time of peace. I should not complete the view 
which ought to be taken of this subject, without making 
this additional remark, — that the powers vested in the 
proposed Government are not so much an augmentation 
of powers in the General Government, as a change 
rendered necessary for the purpose of giving efficacy to 
those which were vested in it before. It cannot escape 
any gentleman, that this power, in theory, exists in the 
Confederation as fully as in this Constitution. The only 
difference is this — that now they tax States, and l>y this 
plan they will tax individuals. There is no theoretic 
difference between the two. But in practice there will 
be an infinite difference between them. Tlie one is an 
ineffectual power ; the other is adequate to tlie purpose 
for which it is given. This change was necessary for the 
public safety. 

"^Let us suppose, for a moment, that the acts oi Con- 
gress, requiring money from the States, had been as 
effectual as the paper on the taljle ; suppose all the laws 
of Congress had complete compliance ; will any gentleman 
say that, as far as we can judge from past experience, 
the State Governments would have been debased, and all 
consolidated and incorporated into one system? My 
imagination cannot reach it. I conceive that had those 
acts that effect, which all laws ought to have, the States 
would have retained their Sovereignty."''' 

George Mason (in opposition) said : 

"The objection was, that too much power was given 
to Congress — power that would finally destroy the State 
Goverranents more effectually by insidious, underhanded 
means, than such as could be openly practiced. "f 

* EllioVs Debates, vol. iii, pp. 259, 260, Virginia State Convention. 
t Elliot's Debates, vol. iii, p. 415. 



264: CONSTITUTIONAL YIEW OF THE WAE. [Vol. I. 

Mr. Marshall replied: "When the Government is 
drawn from the people, and depending on the people for 
its continuance, oppressive measures will not be attempted, 
as they will certainly draw on their authors the resent- 
ment of those on whom they depend. On tliis Govern- 
ment, thus depending on ourselves for its existence, I will 
rest my safety, notwithstanding the danger depicted 
by the honorable gentleman. I cannot help being sur- 
prised that the worthy member thought this power so 
dangerous."* 

He then concluded by observing, that "the power of 
governing the militia was not vested in the States, by 
implication, because, being possessed of it antecedent to 
the adoption of the Government, and not being divested 
of it by any grant or restriction in the Constitution, they 
must necessarily be as fully possessed of it as ever they had 
been. And it could not be said that any of the States 
derived any powers from that system, but retained them, 
tliough not acknowledged in any part of it."f 

Mr. Henry again spoke, as follows: "A bill of rights 
may be summed up in a few words. What do they tell 
us? That our rights are reserved. Why not say so? 
Is it because it will consume too much paper ? Gentle- 
men's reasoning against a bill of rights does not satisfy 
me — without saying which has the right side, it remains 
doubtful. A bill of rights is a fiivorite thing with the 
Virginians, and the people of the other States, likewise. 
It may be their prejudice, but the Government ought to 
suit their geniuses ; otherwise, its operation will be un- 
happy. A bill of rights, even if its necessity be doubtful, 
\\\\\ exclude the possibility of dispute; and, with great 
submission, I think the best wa_y is to have no dispute. 

* ElUnfs Debates, vol. iii, p. 420. 
t EllloVs JJebatca, vol. iii, p. 421. 



Col. VI.] STATE RATIFICATIONS— VIRGINIA. £65 

In the i^resent Constitution,, they are restrained from 
issuing general warrants to search suspected pLaces, or 
seize persons not named, without evidence of the commis' 
sion of a fact, etc. There was certainly some celestial 
influence governing those who deliberated on that Con- 
stitution; for they have, with the most cautious and 
enlightened circumspection, guarded those indefeasible 
rights which ought ever to be held sacred !"'^ 

Mr. George Nicholas, in answer, said: "That, though 
there was a declaration of rights in the Government of 
Virginia, it was no conclusive reason that there should 
be one in this Constitution ; for, if it was unnecessary in 
the former, its omission in the latter could be no defect. 
They ought, therefore, to prove that it was essentially 
necessary to be inserted in the Constitution of Virginia. 
There were five or six States in the Union which had no 
bill of rights, separately and distinctly as such ; but they 
anftexed the substance of a bill of rights to their respective 
Constitutions. These States, he further observed, were 
as free as this State, and their liberties as secure as ours. 
If so, gentlemen's arguments from the precedent were not 
good. In Virginia, all powers were given to the Govern- 
ment without any exception. It was different in the 
General Government, to which certain special powers 
were delegated for certain purposes. He asked which 
was the more safe. Was it safer to grant general powers 
than certain limited powers?" * ''' * 

"A bill of rights," continued he, 'Ms only an acknow- 
ledgment of the pre-existing claim to rights in the people. 
They belong to us as much as if they had been inserted 
in the Constitution. But it is said that, if it be doubtful. 
the possibility of dispute ought to be precluded. Admit- 



EllioVs Debates, v<^l. iii, p. 448. 



2QQ CONSTITUTIONAL VIEW OF THE WAR. [Vol. I, 

ting it was proper for the Convention to have inserted a 
bill of rights, it is not proper here to propose it as the 
condition of our accession to the Union. Would you re- 
ject this Government for its omission, dissolve the Union, 
and bring miseries on yourselves and posterity ? I hope 
the gentleman does not oppose it on this ground solely. 
Is there another reason? He said that it is not only the 
general wish of this State, but all the States, to have a 
bill of rights. If it be so, where is the difficulty of having 
this done by way of subsequent amendment? We shall 
find the other States willing to accord with their own 
favorite wish. The gentleman last up says that the 
power of legislation includes every thing. A general 
power of legislation does. But this is a special power of 
legislation. Therefore, it does not contain that plenitude 
of power which he imagines. They cannot legislate in 
any case but those particularly enumerated. No gentle- 
man, who is a friend to the Government, ought to with- 
hold his assent from it for this reason."''' 

Mr. Henry continued his strenuous opposition in the 
following language : " The Honorable gentleman (Gov. 
Randolph), who was up some time ago, exhorts us not to 
fall into a repetition of the defects of the Confederation. 
He said, we ought not to declare that each State retains 
every power, jurisdiction, and right, which is not ex- 
pressly delegated, because experience has proved the 
insertion of such a restriction to be destructive, and men- 
tioned an instance to prove it. That case, Mr. Chairman, 
appears to me to militate against himself. ''' * '■'' 
They can exercise power, by implication, in one instance 
as well as in another. Thus, by the gentleman's own argu- 
msnt, they can exercise the power, though it be not dele- 

* EllioVs Debates, vol. iii, p. 451. 



Col. YL] STATE RATIFICATIONS— YIRGINIA. 267 

gated. * * '^ We have iiotliing local to ask. "We 
ask rights which concern the general happiness. Must 
not justice bring them into the concession of these? The 
honorable gentleman was pleased to say that the new 
Government, m this policy, will be equal to what the 
present is. If so, that amendment will not injure that 
part. =■'= * * * 

" He speaks of war and bloodshed. Whence do this 
war and bloodshed come ? I fear it, but not from the 
source he speaks of. I fear it, sir, from the operation 
and friends of the Federal Government. He speaks with 
contempt of this amendment. But whoever will advert 
to the use made, repeatedly, in England, of the prero- 
gative of the king, and the frec[uent attacks on the privi- 
leges of the people, notwithstanding many Legislative 
acts to secure them, will see the necessity of exduding 
implications. Nations who have trusted to logical deduc- 
tion^ have lost their liberty ! '=' * ''' * 

'•' The worthy member who proposed to ratify has also 
proposed that what amendments may be deemed neces- 
sary should be recommended to Congress, and that a 
committee should be appointed to consider what amend- 
ments were necessary. But what does it all come to at 
last? That it is a vain project, and that it is indecent 
and improper ! I will not argue unfairly, but I vvill ask 
him if amendments are not unattainable? Will gentle- 
men, then, lay their hands on their hearts, and say that 
they can adopt it in this shape ? When we demand this 
security of our privileges, the language of Virginia is not 
that of respect! Give me leave to deny! She only asks 
amendments previous to her adoption of the Constitu- 
tion. =•= * * 

"He tells you of the important blessings whicli. lie 
imagines, will result to us and mankind in general i'lom 



268 COXSTTTUTTOXAL VIEW OF THE Vv^AR. [Voi. L 

the adoption of this system. I see the awful immensity 
of the dangers with which it is pregnant! I see it! I 
feel it! I see beings of a higher order anxious concern- 
ing our decision! When I see beyond the horizon that 
bounds human eyes, and look at the final consummation 
of all human things, and see those intelligent beings 
which inhabit the ethereal mansions, reviewing the 
political decisions and revokitions which, in the progress 
of time, will happen in America, and the consequent 
happiness or misery of mankind, I am led to believe that 
much of the account, on one side or the other, will de- 
pend on what we now decide ! Our own happiness alone 
is not affected by the event! All nations are interested 
in the determination ! We have it in our power to secure 
the happiness of one half of the human race! Its adop- 
tion may involve the misery of the other hemisphere!"* 

Just at this point in Mr. Henry's speech, the heavens 
blackened with a gathering tempest, which burst with so 
terrible a fury as to put the whole House in such dis- 
order that he could proceed no farther ! It was the last 
speech that Patrick Henry made in that Convention ! 

Did he possess a superhuman vision, or had he caught 
something of the spirit of the ancient prophets, which 
enabled him to see farther into the future, and under- 
stand better the workings of political systems con- 
trolled by human passion, than any of his many great 
and equally patriotic colleagues, in that renowned body 
of sages and statesmen ? Did he see farther in the future 
than Pendleton, Madison, or Marshall, when he said, " I 
see it! I feel it!" Did he get glimpses of the terrible 
scenes of the last seven years ? or, of the still more hor- 
rible ones yet ahead of us — ? 

* " Here a violent storm arose, which put the House in such disorder, 
tliat Mr. Henry was obliged to conclude." — Ecporter. EllioVs Debates^ 
7o\. iii, p. 625. 



Col. VI.] STATE RATIFICATIOXS— VIEGINIA. 269 

Mr. Nicholas replied, by urging "that the language of the 
proposed ratification would secure every thing which gen- 
tlemen desired, as it declared that all powers vested in the 
Constitution were derived from the people, and might be 
resumed by them whensoever they should be perverted 
to their injury and oppression; and that every power 
not granted thereby remained at their will. No danger 
whatever could arise ; for, says he, these expressions will 
become a part of the contract. The Constitution cannot 
he hinding on Virginia, but with these conditions. If 
thirteen individuals are about to make a contract, and 
one asfrees to it, but at the same time declares that lie 
understands its meaning, signification, and intent, to be 
(what the words of the contract plainly and obviouslj 
denote), that it is not to be construed so as to impose 
any supplementary condition upon him, and that he is to 
be exonerated from it ivliensoerer any such imposition 
shall be attempted, — I ask whether, in this case, these 
conditions, on which he has assented to it, would not be 
binding on the other twelve? In like manner these 
conditions will be binding on Congress. They can exer- 
cise no power that is not expressly granted them."* 

On the question of ratification, the vote stood 89 
to 79, being only ten majority in its fLivor.f 

Immediately afterwards the amendments, which hnd 
]jeen agreed upon to be proposed, were taken up and 
adopted, without opposition. They were twenty in num- 
ber. Very similar, in many respects, to those incor- 
porated by Massachusetts in her ratification. The first, 
and most important, was in these words : 

"1st. That each State in the Union shall, respect- 
ively, retain every power, jurisdiction, and right, which 

* EJUoVs Debates, vol. iii., pp. G2o, G2lJ. 

t Ellioftf Debates, vol. iii, p. 054. 



270 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I, 

is not by this Constitution delegated to the Congress of 
the United States, or to the departments of the Federal 
Government."'^' 

These proceedings conclusively show how the Conven- 
tion of Virginia understood the Constitution. That is, 
that it was Federal in its character, and that the 
Government under it was to be a Federal Government, 
one founde*] upon Compact between Sovereign States. 
Not a member of the Convention advocated the Consti- 
tution upon any other principles. The opposition of 
Patrick Henry, George Mason, and others, was altogether 
argumentative, and sprung mainly from apprehensions 
that the Constitution would not be construed as its 
friends maintained that it would be, and that powers 
not delegated would be assumed, by construction and 
implication. These proceedings also show clearly, that 
Virginia understood by the declaration, in her ratifica- 
tion, that her people had the right to resume the powers 
that they had delegated, in case these powers, in their 
judgment, should be perverted to their injury. 

ELEVENTH, NEW YORK. 

The next State, in order, is New York. First we will 
see what was done by her Convention. Here is her rati- 
fication. 

" We, the Delegates of the people of the State of New 
York, duly elected, and met in Convention, having ma- 
turely considered the Constitution for the United States 
of America, agreed to on the 17th day of September, in 
the year 1787, by the Convention then assembled at 
Philadelphia, in the Commonwealth of Pennsylvania 
fa copy whereof precedes these presents), and having, 

* EllioVs Debates, vol. iii, p. 650. 



Col. VI.] STATE RATIFICATIONS— NEW YORR. 271 

also, seriously and deliberately considered the present 
situation of the United States, — Do declare and make 
known, — 

"That all power is originally vested in, and conse- 
quently derived from the people, and that Government 
is instituted by them for their common interest, pro- 
tection, and security. 

" That the enjoyment of life, liberty, and the pursuit 
of happiness, are essential rights, which every Govern- 
ment ought to respect and preserve. 

*'That the powers of Government may be re-assumed 
by the people, whensoever it shall become necessary to 
their happiness; that every power, jurisdiction, and 
right, which is not by the said Constitution clearly dele- 
gated to the Congress of the United States, or the de- 
partments of the Government thereof, remains to the 
people of the several States, or to their respective State 
Governments, to whom they may have granted the same; 
and that those clauses, in the said Constitution, which 
declare that Congress shall not have or exercise certain 
powers, do not imply that Congress is entitled to any 
powers not given by the said Constitution ; but such 
clauses are to be construed either as exceptions to certain 
specified powers, or as inserted merely for greater caution. 
"That the people have an equal, natural, and una- 
lienable right, freely and peaceably, to exercise tli(3ir 
relifnon, accordino; to the dictates of conscience; and 
that no religious sect, or society, ought to be favored or 
established by law in preference to others. 

'' That the people have a right to keep and bear arms; 
that a well regulated militia, including the body of the 
people capable of hearing arms, is .the proper, natural, 
and s:i,fe defence of a free State. 

''That the militia should not be subject to martial 
law, except in time of war, rebellion or insurrection. 



2i2 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1 

"^ That standing armies, in time of peace, are danger- 
ous to liberty, and ought not to be kept up, except in 
cases of necessity, and that at all times the military 
should be under strict subordination to the civil DOwer. 

" That, in time of peace, no soldier ought to be quar- 
tered in any house without the consent of the owner, 
and in time of war only by the civil magistrate, in such 
manner as the laws may direct. 

" That no person ought to be taken, imprisoned, or 
disseized of his freehold, or be exiled, or deprived of his 
privileges, franchises, life, liberty, or property, but by 
due process of law. 

" That no person ought to be put twice in jeopardy of 
life or limb, for one and the same offence ; nor, unless in 
case of impeachment, be punished more than once for 
the same oftence. That every person restrained of his 
liberty is entitled to an inquiry into the lawfulness of 
such restraint, and to a removal thereof if unlawful; 
and that such inquiry, or removal, ought not to be de- 
nied or delayed, except when, on account of public 
danger, the Congress shall suspend the privilege of the 
writ of Haheas Corpus. That excessive bail ought not 
to be required, nor excessive fines imposed, nor cruel or 
unusual punishments inflicted. 

" That (except in the government of the land and 
naval forces, and of the militia, wdien in actual service, 
and in cases of impeachment) a presentment, or indict- 
ment, by a grand jury, ought to be observed, as a neces- 
sary preliminary to the trial of all crimes cognizable by 
the judiciary of the United States ; and such trial should 
be speedy, public, and by an impartial jury of the county 
where the crime was committed ; and that no person 
can be found guilty without the unanimous consent of 
Ruch jury. But in cases of crimes not committed within 



Col. VI.] STATE RATIFICATIONS— XKW YORK. 27^ 

any county of any of the United States, and in ca^es of 
crimes not committed within any county in which a gene- 
ral insurrection may prevail, or which may be in the pos- 
session of a foreign enemy, the inquiry and trial may be 
in such county as the Congress shall by law direct; which 
county, in the two cases last mentioned, should be as 
near as conveniently may be to that county in which the 
crime may have been committed ; — and that, in all 
criminal prosecutions, the accused ought to be informed 
of the cause and nature of his accusation, to be con- 
fronted with his accusers and the witnesses against him, 
to have the means of producing his witnesses, and the 
assistance of counsel for his defence ; and should not be 
compelled to give evidence against himself. 

'4 That the trial by jury, in the extent that it obtains 
by the common law of England, is one of the greatest 
securities to the rights of a free people, and ought to 
remain inviolate. 

" That every freeman has a right to be secure from all 
unreasonable searches and seizures of his person, his 
papers, or his property ; and, therefore, that all warrants 
to search suspected places, or seize any freeman, his 
papers, or property, without information upon oath, or 
affirmation of sufficient cause, are grievous and oppressive ; 
and that all general warrants (or such in which the place 
or person suspected are not particularly designated) are 
dangerous, and ought not to be granted. 

" That the people have a right peaceably to assemble 
together, to consult for their common good, or to instruct 
their representatives, and tliat every person has a right 
to petition, or apply to the Legislature, for redress of 
grievances. 

" That the freedom of the press ought not to be vio- 
lated, or restrained. 
18 



274 CONSTITUTIONAL YIEW OF THE WAR. IVol. I 

" T]iat there should be, once in four years, an election 
of the President and Vice President, so that no officer, 
who may be appointed by tlie Congress, to act as Presi- 
dent, in case of the removal, death, resignation, or ina- 
l)ility, of the President and Vice President, can in any 
case continue to act beyond the termination of the period 
for which the last President and Vice President were 
elected. 

" That nothing contained in the said Constitution is to 
be construed to prevent the Legislature of any State 
from passing laws at its discretion, from time to time, to 
divide such State into convenient districts, and to appor- 
tion its Representatives to and amongst such districts. 

" That the prohibition contained in the snid Constitu- 
tion, against ex ix)st facto laws, extends only to laws con- 
cerning crimes. 

" That all appeals in causes determinable according to 
the course of the common law, ought to be by writ of 
error, and not otherwise. 

" That the judicial power of the United States, in 
cases in which a State may be a party, does not extend 
to criminal prosecutions, or to authorize any suit hy any 
person against a State. 

"That the judicial power of the United States, as to 
controversies between citizens of the same State, claim- 
ing lands under grants from different States, is not to bo 
construed to extend to any other controversies between 
them, except those which relate to such lands, so claimed, 
under grants of different States. 

"That the jurisdiction of the Supreme Court of the 
United States, or of any other Court to be instituted by 
the Congress, is not in any. case to be increased, enlarged, 
or extended, by any faction, collusion, or mere sugges- 
lion; and that no treaty is to be construed so to operate 
as to :i'ter the Constitution of any State. 



Cm. V\.] STATE RATIFICATIONS— NEW YORK. 273 

" Under these impressions, and declaring that the 
rights aforesaid cannot be abridged, or violated, and that 
the explanations aforesaid, are consistent with the said 
Coiistitution, and in confidence that the amendments, 
which shall have been proposed to the said Constitution, 
will receive an early and mature consideration. ^Ve, 
the said delegates, in the name and in the behalf of the 
people of the State of New York, do, by these presents^ 
assent to, and ratify the said Constitution. In full confi- 
dence, nevertheless, that, until a Convention shall be 
called and convened, tor proposing amendments to the 
said Constitution, the militia of this State will not be 
continued in service out of this State for a longer term 
than six weeks, without the consent of the Legislature 
thereof; that the Congress will not make or alter any 
regulation in this Sta'te, respecting the times, places, and 
manner, of holding elections for Senators or Representa- 
tives, unless the Legislature of this State shall neglect or 
refuse to make laws or regulations for the purpose, or 
from any circumstance, be incapable of making the 
same ; and that in those cases, such power will only be 
exercised until the Legislature of this State shall make 
provision in the premises; that no excise will be imposed 
on any article of the growth, production, or manufacture 
of the United States, or any of them, within this State, 
ardent spirits excepted ; and that Congress will not lay 
direct taxes within this State, but when the moneys 
arising from the impost and excise shall be 'insufficient 
for the public exigencies, nor then, until Congress shall 
first have made a requisition upon this State, to assess, 
levy, and pay, the amount of such requisition, made 
agreeably to the census fixed in the said Constitution, in 
such way and manner as the Legislature of this State 
i*5hall judge best; but that, in such case, if the State sii.^il 



276 CONSTITUTIONAL YIEW OF THE vVAR. [Vol. I. 

neglect or refuse to pay its proportion, pursuant to such 
requisition, then the Congress may assess and levy this 
State's proportion, together with interest, at the rate of 
six per centum per annum, from the time at which the 
same was required to be paid. 

'' Done, in Convention, at Poughkeepsie, in the county 
of Duchess, in the State of New York, the 26th day of 
July, in the year of our Lord 1788."* 

A careful perusal of these proceedings leaves no doubt 
as to how the Convention of New York understood the 
Constitution. They recognized it as a Constitution for 
States. As Virginia, New York accompanied her ratifi- 
cation with the express declaration that the powers of 
Government may be resumed by the people whensoever it 
shall become necessary to their happiness, etc. " Under 
these impressions, and declaring that the rights aforesaid 
(after the enumeration of many, especially the reserved 
rights of the people of the several States as States) can- 
not be abridged or violated" a majority of the members 
of the Convention gave it their assent and ratification. 
So much for what was done. 

Secondly, let us examine the res gestw — the debates. 

In New York the opposition was stronger in numbers, 
comparatively, than in Virginia. On the final vote on 
the ratification there was but three majority in its favor. 
Some of the ablest men of the State were in the Conven- 
tion. At the head of the list may be placed the venerable 
Robert R.'Livingston, the Chancellor of the State. Next 
tf. him stood Alexander Hamilton, who had been in the 
Philadelphia Convention. 

Now let us, as in the other State Conventions, sample 
the debates in this. The Constitution here, as in Massar 

* miioVs Debates, vol. i, pp. 327-329. 



Col. VI.] STATE RATIFICATIONS— NEW YORK. 277 

chusetts and Virginia, was thoj^oughly discussed. How 
was it understood by its advocates? 

Chancellor Livingston opened the discussion. After 
some general remarks "he next adverted to the form of 
the Federal Government. He said that, though justified 
when considered as a mere diplomatic body, making 
engagements for its respective States, which they were 
to carry into effect, yet, if it was to enjoy legislative, 
judicial, and executive powers, an attention as well to 
the facility of doing business as to the principles of free- 
dom, called for a division of those powers."'-' 

In another speech afterwards, he says : 

"The gentleman from Duchess appears to have mis- 
apprehended some of the ideas which dropped from me. 
My argument was, that a Republic might very properly 
be formed by a league of States, but that the laws of the 
general Legislature must act, and be enforced upon indi- 
viduals. T am contending for this species of Goccnimeut. 
The gentlemen who have spoken in opposition to me 
have either misunderstood or perverted my meaning; 
but, sir, I flatter myself, it has not been misunderstood 
by the Convention at large. 

"If we examine the history of the Federal Republics, 
whose legislative powers were exercised only in States, 
in their collective capacity, we shall find in their funda- 
mental principles the seeds of domestic violence and con- 
sequent annihilation. This was the principal reason 
why I thought the old Confederation would be forever 
irapracticable."-|- He' was for a Government founded on 
a Compact or League of States, with authority to act on 
the individual citizens of each State, and maintained that 
such was the form of Government then presented, 

* EllinVs Dehntes, vol. ii. p. 215. 
t ElliuVs Dehutes, vol. ii, p. 274. 



278 COXyriTUTIOXAL YTEW OF THE WAR. | Vol. I. 

Agnin, he said : *- 

"Let us take a view of the present Congress. The 
gentleman is satisfied with our present Federal Govern- 
ment, on th.c acore of corruption. Here he has confi- 
dence. Though each State ma}' delegate seven, tliey 
generally sent no more than three; couvsequently thirty- 
nine men may transact any business under the old Gov- 
ernment ; while the new Legislature, which will be, in 
all probability, constantly full, will consist of ninety-one. 
But, says the gentleman, our present Congress have not 
the same powers. I answer. They have the very same. 
Congress have the power of making war and peace, of 
levj'ing money and raising men; they may involve us in 
a war at their pleasure ; they may negotiate loans to any 
extent, and make unlimited demands upon the States. 
Here the gentleman comes forward, and says, that the 
States are to carry these powers into execution ; and 
they have the power of non-compliance. But is not 
every State bound to comply? What power have tliey 
to control Congress in the exercise of those rights which 
they have pledged themselves to support? It is true 
they have broken, in numerous instances, the compact 
by which they were obligated; and they may do it again ; 
but will the gentleman draw an argument of security 
from the facility of violating their fjiith ? Suppose there 
should be a majority of creditor States, under the present 
Government; might they not combine, and compel us to 
observe the covenants by which we had bound ourselves? 

''We are told that this Constitution gives Congress the 
power over the purse and the sword. Sir, have not all 
good Governments this power ? Nay, does any one doul)t 
that, under the old Confederation, Congress holds the 
purse and the sword? How many loans did they ])ro- 
oure, which we are bound to pay ! How many men did 



Col. VI. j STATE RATIFICATIONS— NEW YORI^. 279 

they raise, whom we are bound to maintain ! How will 
gentlemen say, that that body, which is indeed extremely 
small, can be more safely trusted than a much larger 
body possessed of the same authority? What is the 
ground of such entire confidence in the one — what the 
cause of so much jealousy of the other?"* 

Mr. Williams, in opposition, spoke as follows : ''Sir, 
I yesterday expressed my fears that this clause would 
tend to annihilate the State Governments. I also ob- 
served, that the powers granted by it were indefinite, 
since the Congress are authorized to provide for the < om- 
mon defence and general welfare, and to piiss all laws 
necessary for the attainment of these important objects. 
The Legislature is the highest power in a Government. 
Whatever they judge necessary for the proper adminis- 
tration of the powers lodged in them, they may execute 
without any check or impediment. Now, if the Con- 
gress should judge it a proper provision, for the common 
defence and general welfare, that the State Governments 
should be essentially destroyed, what, in the name of 
common sense, will prevent them? Are they not Con- 
stitutionally authorized to pass such laws ? Are not the 
terms, common defence and general welfare, indefinite, 
jndefinable terms? What checks have the State Gov- 
ernments against such encroachments? Why, they ap- 
point the Senators once in six years. So do the electors 
of Germany appoint their Emperor. And what restraint 
iiave they against tyranny in their head? Do they rely 
upon any thing but arms, the ultima ratio? And to this 
most undesirable point must the States recur ni order to 
secure their rights."t 

Mr. Hamilton, on the other side, said : ''Sir, the most 



* EllioVs Debater, vol. ii, p. 279,-219. 
t EllioVs Debutes, vol. ii, p. 33S. 



2,^0 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

powerful obstacle to the members of Congress betraying 
the interest of their constituents, is the State Legisla- 
tures themselves, who will be standing bodies of observa- 
tion, possessing the confidence of the people, jealous of 
Federal encroachments, and armed with every power to 
check the first essays of treachery. They will institute 
regular modes of inquiry. The complicated domestic 
attachments, which subsist between the State Legisla- 
tors and their electors, will ever make them vigilant 
guardians of the people's rights. Possessed of the me;ius 
and the disposition of resistance, the spirit of opposition 
will be easily communicated to the people, and, under 
the conduct of an organized body of leaders, will act with 
weight and system. Thus, it appears that the very struc- 
ture of the Confedercicij affords the surest preventions 
from error, and the most powerful checks to miscon- 
duct.'"''' 

Again, he said : " The gentlemen are afraid that the 
State Governments will be abolished. But, sir, their 
existence does not depend upon the laws of the United 
States. Gon.ejress can no more abolish the State Goveriv- 
jnoits, than the// can dissolve the Union. The wdiole Con- 
stitution is repugnant to it, and yet the gentleman would 
introduce an additional useless provision against it."f 

Mr. Lansing, doubting, expressed liimself as follow\s : 
'•' I know not that history furnishes an example of a 
Confederated Republic coercing the States composing it, 
by the mild infiuence of laws operating on the individuals 
of those States. This, therefore, I suppose to be a new 
experiment in politics ; and, as we cannot ahvr.ys accu- 
rately ascertain the results of political measures, and, as 
reasoning on them has been frequently found fallacious, 

* EUioVs Debates, vol. ii, pp. 206-267. 
t EllioVs Dtbales, vol. ii, p. 319. 



Col. VI.] STATE RATIViCATIOXS— NEW YORK. 281 

we should not too confidently predict those to be pro- 
duced by the new system." ■•' 

Mr. Hamilton, in a general exposition of the Constitu- 
tion, said : " We cojitoul that the radical vice in the old 
Coi /fed end ion, is, that the laics of the Uiiloii aj^ply only to 
/States in their corporate capacity. Has not every man, 
who has been in our Legislature, experienced the truth 
of this position ? It is inseparable from the disposition 
of bodies, who have a Constitutional power of resistance, 
to examine the merits of a law. This has ever been the 
case with the Federal requisitions. In this examination, 
not being furnished with those lights which directed the 
deliberations of the general Government, and incapable 
of embracing the general interests of the Union, the 
States have almost uniformly weighed the requisitions 
by their own local interests, and have only executed 
them so far as answered their particular convenience or 
advantage. '•' * * It has been observed, to coerce 
the States is one of the maddest projects that was ever 
devised. A failure of compliance will never be confined 
to a single State. This being the case, can we suppose 
it wise to hazard a civil war ? Suppose Massachusetts, 
or any large State, should refuse, and Congress should 
attempt to compel them, would they not have influence 
to procure assistance, especially from those States which 
are in the same situation as themselves ? What picture 
does this idea present to our view ? A complying State 
at war with a non-compljdng State ; Congress marching 
the troops of one State into the bosom of anotht-r; this 
State collecting auxiliaries, and forming, perhaps, a 
majority against its Federal head. Here is a nation at 
war with itself. Can any reasonable man be well dis- 



* ElWs Debates, vol. ii, p. 219 



282 CONSTITUTIONAL VIEW. OF THE WAR. [Vol I. 

posed towards a Government which makes war and car- 
nage the only means of supporting itself — a Government 
that can exist only by the sword ? Every such war must 
involve the innocent with the guilty. This single con- 
sideration should be sufficient to dispose every peaceable 
citizen against such a Government. But can we believe 
that one State will ever suffer itself to be used as an in- 
htrument of coercion ? The thing is a dream ; it is im- 
possible. Then we are brought to this dilenmia — either 
a Federal standing army is to enforce the requisitions, or 
the Federal treasury is left without supplies, and the 
Government without support. What, sir, is the cure for 
this great evil? Nothing, but to enable the national 
laws to operate on individuals, in the same manner as 
those of the States do. This is the true reasoning upon 
the subject, sir. The gentlemen appear to acknowledge 
its force ; and yet, while they yield to the principle, they 
seem to fear its application to the Government.'"-' 

Again, he said : " The State Governments possess in- 
herent advantages, which will ever give them an inlkience 
and ascendancy over the National Government, and will 
forever preclude the possibility of Federal encroachments. 
That their liberties, indeed, can be subverted by the 
Federal head, is repugnant to every rule of political cal- 
culation. Is not this arrangement, then, sir, a most wise 
and prudent one ? Is not the present representation fully 
adequate to our present exigencies, and sufficient to 
answer all the purposes of the Union ? I am persuaded 
than an examination of the objects of tlie Federal Gov- 
ernment will afford a conclusive answer. "f 

Mr. Jay, afterwards Chief Justice of the United States, 
said : " Sir, it seems to be, on all sides, agreed that a 



* ElUoVs Debates, vol. ii, pp. 2:51, 232, 233. 
t ElUoVs Debates, vol. ii, p. 23y. 



Col. VI.] STATE RATIFICATIONS— NEW YOEK. 258 

strong, energetic, Federal Government is necessary for 
the United States. It has given me pleasure to hoar 
such declarations come from all parts of the House. If 
gentlemen are of this opinion, they give us to understand 
that such a Government is the favorite of their desire ; 
and also, that it can be instituted ; that, indeed, it is both 
necessary and practicable ; or why do they advocate it."'^' 

Mr. R. Morris said: "lam happy, Mr. Chairman, to 
perceive that it is a principle on all sides conceded, v^nd 
adopted by this committee, that an energetic Federal 
Government is essential to the preservation of our Union; 
and that a Constitution for these States ought to unite 
(innness and vigor in the National operations, with the 
full securities of our rights and liberties."f 

Mr. Hamilton, again, said : " I insist that it never can 
be the interest or desire of the National Legislature to 
destroy the State Gomriiineuts. It can derive no advan- 
ta2;e from such an event; but, on the contrary, would 
lose an indispensable support, a necessary aid in exe- 
cuting the laws, and conveying tlie iniluence of Govern- 
ment to the doors of the people. The Union is dependent 
on the will of the State Governments for its Chief Magis- 
trate, and for its Senate. The blow aimed at the mem- 
bers must give a fatal wound to the head; and the 
destruction of the States must be at once a political sui- 
cide." ''' * '^'' 

" The States can never lose their powers till the wliole 
people of America are robbed of their liberties. These 
must go together ; they must support each other, or meet 
one common fate. "J 

" With regard to the jurisdiction of the two Govern- 
ments, I shall certainly admit that the Constitution ouglit 



* WMofs Debates, vol. ii, p. 2S2. t EU'kjVs Debates, vol. ii, p. -JUU. 
X EllioVs Debates, vol. ii, p. 3oo. 



28 i CONSTITUTIONAL TIEW OF THE WAR. [Vol I. 

to Ix; SO formed as not to prevent the States from pro- 
viding for tlieir own existence: and I maintain that it is 
so formed, and that their power of providing for them- 
selves is sufficiently established. This is conceded by one 
gentleman, and in the next breath the concession is re- 
tracted. He says, Congress have but one exclusive right 
in taxation — that of duties on imports ; certainly, then, 
their other powers are only concurrent. But, to take off 
the force of this obvious conclusion, he immediately says, 
that the laws of the United States are supreme ; and that 
where there is one supreme, there cannot be concurrent 
authority ; and further, that where the laws of the Union 
are supreme, those of the States must be subordinate, 
because there cannot be two supremes. This is curious 
sophistry. That two supremes cannot act together, is 
false. They are inconsistent only when they are aimed 
at each other, or at one indivisible object. The laws of 
the United States are supreme, as to all their proper, 
constitutional objects ; the laws of the States are supreme 
in the same way. These supreme laws may act on differ- 
ent objects without clashing, or they may operate on 
different parts of the same object, M'ith perfect harmony. 
Suppose both Governments should lay a tax, of a penny 
on a certain article : had not each an independent and 
ancontroUable power to collect its own tax ? The mean- 
ing of the maxim, there cannot be two supremes, is 
simply this — two powers cannot be supreme over each 
other. This meaning is entirely perverted by the gentle- 
man. But it is said disputes between collectors are to be 
referred to the Federal courts. This is again wandering 
in the field of cwijecture. But suppose the fact certain : 
is it not to be presumed that they will express the true 
moaning of the Constitution and the laws ? Will they 
not be bound to consider the concurrent jurisdiction; to 



Col. YI.] STATE RATIFICATIONS— NORTn CAROLINA. 285 

declare that both the taxes shall have equal operation ; 
that both the powers, in that respect, are Sovereign and 
co-extensive ? If they transgress their duty, we are to 
hope that they will be punished. Sir, we can reason 
from probabilities alone. When we leave common sense, 
and give ourselves up to conjecture, there can be no cer- 
tainty, no security in our reasonings. 

" I imagine, I have stated to the committee abundant 
reasons to prove the entire safety of the State Gocernments 
and of the people. "'=" 

This is quite sample enough of the debates in New 
York Convention, (which lasted for more than a month) 
to show how the leading advocates of the Constitution in 
that State understood it, and especialh' how Mr. Hamilton 
understood it. His own copious and elaborate speed les 
abundantly show that he considered the plan, finall}- 
adopted by the Philadelphia Convention, to be a Federal 
ConciCitution. And his greatest efibrts were put forth 
against those who argued that a different construction 
might be put upon it. In all of the speeches I have read, 
he speaks of the Government as Federal, and in one he 
styles it a Confederacy. As such, he gave it his zealous 
support, though it was not such a one as ne wished to see 
organized. Nor was it one in which he had much real 
confidence. The idea on which it was based was not his 
own ; failing in his own, he patriotically took the plan 
adopted, and threw his whole soul in its support as an 
experiment. 

TWELFTH, NORTH CAROLINA. 

The next State in order is North Carolina. She 
remained out of the Union for some time. As m the 
other cases we will look first into her action, and then the 
debates. Her ratification is in these words : 

* EllwVs Dehak.i, vol. ii, p. 355. 



2S6 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

" In Convention : 

" Whereas, the General Convention, which met in 
Philadelphia, in pursuance of a recommendation of Con- 
gress, did recommend to the citizens of the United States 
a Constitution, or form of Government, in the following 
words, namel}^ : Resolved, That this Convention, in be- 
half of the freemen, citizens, and inhabitants of the State 
of North Carolina, do adopt and ratify the said Constitu- 
tion and form of Government. 

" Done, in Convention, this twenty-first day of Novem- 
ber, one thousand seven hundred and eighty-nine." 

The proceedings in North Carolina are short. Upon 
their face there is nothing that would indicate the under- 
standing; of the members of the Convention as to the 
nature and character of the Government instituted by 
the Constitution they adopted. In the debates, the points 
discussed related mostly to the details of the Constitution. 
But quite enough, however, appears in them to show the 
general understanding. 

Secondly, let us look into the debates in this Conven- 
tion, as we have in those of the other States. 

Mr. Davie, who was in the Philadelphia Convention, 
opened the discussion, and amongst other things, said : 

" Another radical vice in the old system which was 
necessary to be corrected, and which will be understood 
without a long deduction of reasoning, was, that it legis- 
lated on States, instead of individuals ; and that its 
powers could not be executed but by fire or by the sword — 
by military force, and not by the intervention of the civil 
magistrate. Every one who is acquainted with the rela- 
tive situation of the States, and the genius of our citizens, 
must acknowledge that, if the Government was to be 
carried into effect by military force, the most dreadful 
consequences would ensue. It would render the citizen? 



Co,, VI.] STATE RATIFICATIONS— NORTH CAROIJNA. 2'-^7 

of America the most implacable enemies to one anotluT. 
If it could be carried into effect against the small Stat(>s, 
yet it could not be put in force against the larger and 
more powerful States. It was, therefore, abundantly 
necessary that the influence of the magistrate should be 
introduced, and that the laws should be carried home to 
individuals themselves. 

" In the formation of this system, many difficulties 
presented themselves to the Convention. 

" Every member saw that the existing system would 
ever be ineffectual, unless its laws operated on individ- 
uals, as military coercion was neither eligible nor practi- 
cable." * * * 

" Mutual concessions were necessary to come to any 
concurrence. A plan that would promote the exclusive 
interests of a few States would be injurious to others. 
Had each State obstinately insisted on the security of its 
particular local advantages, we should never have come 
to a conclusion. Each, therefore, amicably and wisely 
relinquished its particular views. The Federal Conven- 
tion have told you, that the Constitution, which they 
formed, ' was the result of a spirit of amity, and of that 
mutual deference and concession which the peculiarity of 
their political situation rendered indispensable.' I hope 
the same laudable spirit will govern this Convention in 
their decision on this important question. 

" The business of the Convention was to amend the 
Confederation, by giving it additional powers. The 
present form of Congress being a single body, it was 
thought unsafe to augment its powers, without altering its 
organization. The act of the Convention is but a mere 
proposal, similar to the production of a private pen. I 
think it a, Government wdiicli, if adopted, will cherish 
and protect the happiness and liberty of America; but I 



288 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1 

hold my mind open to conviction. I am ready to recede 
from my opinion, if it be proved to be ill-founded. I trust 
that every man here is equally ready to change an 
opinion he may have improperly formed. The weakness 
and inefficiency of the old Confederation produced the 
necessity of calling the Federal Convention. Their plan 
is now before you ; and, I hope, on a deliberate conside- 
ration, every man will see the necessity of such a system. 
It has been the subject of much jealousy and censure out 
of doors. I hope gentlemen will now come forward with 
their objections, and tliat they will be thrown out and 
answered with candor and moderation. * ==5 * ^ 
consolidation of the States is said by some gentlemen to 
have been intended. They insinuate that this was the 
cause of their giving this power of elections. If there 
were any seeds in this Constitution which might, one 
day, produce a consolidation, it would, sir, with me, be 
an insuperable objection, I am so perfectly convinced that 
so extensive a country as this, can never be managed by 
one consolidated Government. The Federal Convention 
were as well convinced as the members of this House, 
that the Slate Governments were absolutely necessary 
to the existence of the Federal Government. They con- 
sidered them as the great massy pillars on Avhich this 
political fabric was to be extended and supported ; and 
were fully persuaded that, when they were removed, or 
should moulder down by time, the General Government 
must tumble into ruin. A very little reflection will show 
that no department of it can exist without the State 
Governments. 

"Let us begin with the House of Representatives. Who 
are to vote for the Federal Representatives? Those who 
vote for the State Representatives, If the State Govern- 
nient vanishes, the General Government must vanish 



CoL.YL] STATE RATIFICATIONS-NORTH CAROLINA 289 

also. This is the foundation on which this Government 
was raised, and without which it cannot possibly exist. 

" The next department is the Senate. How is it formed? 
By the States themselves. Do they not choose them? 
Are they not created by them ? And will tliey not have 
the interest of the States particularly at heart? The 
States, sir, can put a final peiiod to the Government, as 
was observed by a gentleman who thought this power 
over elections unnecessary. If the State Legislatures 
think proper, they may retuse to choose Senators, and 
the Government must be destroyed."* 

Besides this act of ratification and the speeches of Mr. 
Davie, we have a set of Resolutions which were passed 
by the Convention, recommending six amendments to 
the Constitution, which fully explain their understand- 
ing of the Constitution. 

The first of these is as follows : 

" 1. Each State in the Union shall respectively retain 
every power, jurisdiction, and right, which is not by 
this Constitution delegated to the Congress of the United 
States, or to the departments of the General Government; 
nor shall the said Congress, nor any department of the 
said Government, exercise any act of authority over any 
individual in any of the said States, but such as can be 
justified under some power particularly given in thit^ 
Constitution; but the said Constitution shall be considered 
at all times a solemn instrument, defining the extent of 
their authority, and the limits of which they cannot 
rightfully in any instance exceed."f 

This is quite sufficient to show that the people of 
North Carolina understood the Constitution they adopted 

* ElUoVs Debates, vol. iv, pp. 21, 22, 2:i, 58. 
t EllioVs Debates, vol iv, p. 249. 
19 



290 CONSriTUTIONAL TIEW OF THE WAR. [Vol.1 

to be Federal in its character. That is the object of our 
inquiry. 

THIRTEENTH, RHODE ISLAND. 

We come now to Rhode Island, the last of the States 
which acted upon the Constitution. Her proceedings are 
very voluminous. Nothing but the importance of the 
question at issue could induce me to ask you to attend 
to their reading. Their very length, however, shows 
how completely Federal they were, and guarding against 
every possible danger to their Sovereignty. 

Here is the Document by which she became a member 
of the United States, under their present Union : 

"We, the Delegates of the people of the State of 
Rhode Island and Providence Plantations, duly elected, 
and met in Convention, having maturely considered the 
Constitution for the United States of America, agreed to 
on the seventeenth day of September, in the year one 
thousand seven hundred and eighty-seven, by the Con- 
vention then assembled at Philadelphia, in the Common- 
wealth of Pennsylvania (a copy whereof precedes these 
presents), and having also seriously and deliberately con- 
sidered the present situation of this State, do declare 
and make known, — 

'' I. That there are certain natural rights of which 
men, when they form a social CompaCu, cannot deprive 
or divest their posterity, — among whi:h are the enjoy- 
ment of life and liberty, with the means of acquiring, 
possessing, and protecting property, and pursuing and 
obtaining happiness and safety. 

" II. That all power is naturally vested in, and con- 
sequently derived from, the people; that magistrates, 
therefore, are their trustees and agenf s, and at all times 
imenable to them. 

" III That the jxywers of Governu.ent may he resumed 



Coi,. VI] STATE KATIFICATIOXS-PJTODE ISLAND. 291 

by the people whensoever it shall become necessary to 
their happiness. That the rights of the States respect- 
ively to nominate and appoint all State officers, and 
every other power, jurisdiction, and right, which is not 
by the said Constitution clearly delegated to the Con* 
gress of the United States, or to the Departments of 
Government thereof, remain to the people of the several 
States, or their respective State Governments, to whom 
they may have granted the same ; and that those clauses 
in the Constitution which declare that Congress shall 
not have or exercise certain powers, do not imply that 
Congress is entitled to any powers not given by the said 
Constitution; but such clauses are to be construed as 
exceptions to certain specified powers, or as inserted 
merely for greater caution. 

'^ IV. That religion or the duty which we owe to our 
Creator, and the manner of discharging it, can be directed 
only by reason and conviction, and not by force and 
violence ; and, therefore, all men have a natural, equal, 
and unalienable right to the exercise of religion accord- 
ing to the dictates of conscience ; and that no particidar 
religious Sect, or Society, ought to be favored or esta- 
blished by law, in preference to others. 

" V. That the legislative, executive, and judiciary 
powers of Government should be separate and distinct ; 
and that the members of the two first may be restrained 
from oppression, by feeling and participating the pul^lic 
burdens, they should, at fixed periods, be reduced to a 
private station, returned into the mass of the people, 
and the vacancies be supplied by certain and regular 
elections, in which all, or any part of the former mem- 
bers to be eligible, or ineleligible, as the rules of the 
Constitution of Government and the laws shall direct. 

" VI. That elections of representatives in Legislature 



292 CONSTITUTIONAL VIEW OF THE WAE. [Yol. I. 

ought to be free and frequent : and all men having 
sufficient evidence of permanent common interest with, 
and attachment to, the community, ought to have the 
right of suffrage; and no aid, charge, tax, or fee, can 
be set, rated, or levied, upon the people, without their 
own consent, or that of their representatives so elected, 
nor can they be bound by any law to which they have 
not in like manner consented for the public good. 

" VII. That all power of suspending laws, or the exe- 
cution of laws, by any authority, without the consent of 
the representatives of the people in the Legislature, is 
injurious to their rights, and ought not to be exercised. 

'"VIII. That, in all capital and criminal prosecutions, 
a man hath the right to demand the cause and nature of 
his accusation, to be confronted with the accusers and 
witnesses, to call for evidence, and be allowed counsel in 
his favor, and to a fair and speed}^ trial by an impartial 
jury in his vicinage, without whose unanimous consent 
he cannot be found guilty, (except in the government of 
the land and naval forces,) nor can he be compelled to 
give evidence against himself 

" IX. That no freeman ought to be taken, imprisoned, or 
disseized of his freehold, liberties, privileges, or franchises, 
or outlaw^ed, or exiled, or in any manner destroyed, or 
deprived of his life, liberty, or property, but by the trial 
by jury, or by the laws of the land, 

" X. That every freeman, restrained of his liberty, is 
entitled to a remedy, to inquire into the lawfulness 
thereof, and to remove the same if unlawful, and that 
Buch remedy ought not to be denied or delayed. 

" XL That in controversies respecting property, and 
in suits between man and man, the ancient trial by jury, 
as hath been exercised by us and our ancestors, from the 
time whereof the memory of man is not to the contrary, 



Co -. VI.] STATE RATIFICATIONS— RHODE ISLAND. 293 

is one of the greatest securities to the rights of the people, 
and ought to remain sacred and inviolable. 

" XII. That every freeman ought to obtain right and 
justice, freely and without sale, completely and without 
denial, promptly and without delay ; and that all estal> 
lishments, or regulations contravening these rights are 
oppressive and unjust. 

" XIII. That excessive bail ought not to be required, 
nor excessive fines imposed, nor cruel or unusual punish- 
ments inflicted. 

" XIV. That every person has a right to be secure from 
all unreasonable searches and seizures of his person, his 
papers, or his property ; and, therefore, that all warrants 
to search suspected places, to seize any person, his papers, 
or his property, without information upon oath or affirniit- 
tion of sufficient cause, are grievous and oppressive ; and 
that all general warrants (or such in which the place or 
person suspected are not particularly designated) are 
dangerous, and ought not to be granted. 

" XV. That the people have a right peaceably to 
assemble together, to consult for their common good, or 
to instruct their representatives ; and that every person 
has a right to petition or apply to the Legislature for 
redress of grievances. 

" XVI. That the peoj)le have a right to freedom of 
speech, and of writing, and publishing their sentiments. 
That freedom of the press is one of the greatest bulwarks 
of liberty, and ought not to be violated. 

" XVII. That the people have a right to keep and bear 
arms ; that a well regulated militia, including the body 
of the people capable of bearing arms, is the proper, 
natural, and safe defence of a free State ; that the militia 
shall not be subject to martial law, except in time of 
war, rebellion, or insurrection; that standing armies, in 



294 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

time of peace, are dangerous to liberty, and ought not to 
l)e kept up, except in cases of necessity ; and that, at all 
times, the military should be under strict subordination 
to the civil power; that, in time of peace, no soldier 
ought to be quartered in any house without the consent 
of the owner, and in time of war only by the civil 
magistrates, in such manner as the law directs. 

"XVIII. That any person religiously scrupulous of bear- 
ing arms ought to be exempted upon the payment of an 
equivalent to employ another to l^ear arms in his stead. 

" Under iJiese impressions, and declaring that the rujlii 
aforesaid cannot be abridged or violated, and that the 
explanations aforesaid are consistent with the said Con- 
stitution, and in confidence that the amendments here- 
after mentioned will receive an early and mature con- 
sideration, and, conformably to the fifth article of said 
Constitution, speedily become a part thereof, — We, the 
said Delegates, in the name and in the behalf of the 
people of the State of Rhode Island and Providence Plan- 
tations, do, by these presents, asssent to and ratify the 
said Constitution. In full confidence, nevertheless, that, 
until the amendments hereafter proposed and undermen- 
tioned shall be agreed to and ratified, pursuant to the 
aforesaid fifth article, the militia will not be continued m 
service out of this State, for a longer term than six weeks, 
without the consent of the Legislature thereof; that the 
Congress will not make or alter any regulation in this 
State respecting the times, places, and manner of holding 
elections for Senators or RejDresentatives, unless the 
Legislature of this State shall neglect or refuse to make 
laws or regulations for the purpose, or from any circum- 
stance, be incapable of making the same ; and that, in 
those cases, such power will only be exercised until the 
-Legislature of this State shall make provision in the 



Col. VI.] STATE RATIFICATIONS— RHODE ISLAND. 295 

premises; that the Congress will not lay direct taxes within 
this State, but when the moneys arising from impost, 
tonnage, and excise, shall be insufficient for the public 
exigencies, nor until the Congress shall have first made a 
requisition upon this State to assess, levy, and pay, the 
amount of such requisition made, agreeably to the census 
fixed in the said Constitution, in such way and manner 
as the Legislature of this State shall judge best; and that 
Congress will not lay any capitation or poll tax. 

" Done in Convention, at Newport, in the County of 
Newport, in the State of Rhode Island and Providence 
Plantations, the twenty-ninth day of May, in the year of 
our Lord one thousand seven hundred and ninety, and 
in the fourteenth year of the Independence of the United 
States of America."* 

We have now gone through with the action of all the 
States upon the Constitution. We have examined the, 
records themselves, and not mere assertions touching 
them. This concludes that sketch of the history of the 
Union, as it is called, which I proposed. In it we see, 
that it was first formed by separate and distinct Colonies 
for the common maintenance of the chartered rights of 
each. When this failed, it became a Union of separate, 
distinct States, by Articles of Confederation, for the sup- 
port and maintenance of'the Independence and Sovereignty 
of each. The absolute right of local Self Government, 
or State Sovereignty, was the primal and pleading idea 
throughout. We have seen that these States, as Sove- 
reign, responded to a call of a General Federal Conven- 
tion, to revise the first Articles of Confederation. The 
[^resent Constitution was the result of their labors. We 
have seen that it was submitted to the Legislatures of 

* EllioVs Debates, vol. i, pp. 334-335. 



296 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

each State, in their se^Darate State organizations, to be 
referred by them to a Convention, in each State, of the 
people thereof, that they, in their Sovereign majesty, 
might approve or reject each, separately, for themselves, 
as States, and that it was to be established between such 
States only as should ratify it, and then only in case as 
many as nine should ratify it. 

We have seen that the State Conventions did so act 
upon it separately and severally, and adopt it as a Con- 
stitution for the States, so to be united thereby, each 
believing it to be a Federal Constitution, and that all 
powers not delegated were reserved to the States ; but, to 
quiet apprehensions on this point, a majority of them, in 
their acts of ratification,, demanded an amendment which 
should make this express declaration, and it was in conji- 
dence that this should be done, that they assented to it. 
Which we shall see was immediately afterwards done. 

We have further gone into the debates in the several 
State Conventions, and seen what were the leading ideas of 
both friends and opponents as to the nature and character 
of the Constitution. While many apprehended danger 
to the Sovereignty of the separate States from construo- 
ikms and implications, yet on all hands it was universally 
admitted that it purported to be a Federal Constitution ; 
and it was with this avowed understanding of its nature, by 
every advocate and supimrter it had in every State in the 
Union, even by Hamilton, Morris, Wilson, King, Madison, 
and Randolph, who had favored a National Government 
proper, in the Federal Convention, instead of the plan 
embodied in the Constitution. The leading idea in all 
the Conventions was that a Confederate Republic was to 
be established by it upon the model set forth in Montes- 
quieu. According to that model an artificial State is 
created for Foreign or National, as well as inter State 



Col. VI.] STATE RATIFICATIONS— CONCLUDED. 297 

purposes, and these only, by several small Republics, thus 
Confederating, for their common defence and liap})iness ; 
each retaining its separate Sovereignty, and the artificial 
State so created by them being, at all times, sulyect to 
their will and power. That this artificial State so 
created may be dissolved, and yet the separate Republic 
survive, retaining, at all times, their State organization and 
Sovereignty. This model of a Confederate Republic, by 
Montesquieu, was the leading idea with the advocates of 
the system, as appears from their debates, in every State 
where we have access to them. 

Now, then, after this review, is it not clear that the 
United States are, or constitute, a Confederated Republic 
(as Washington styled it), bound together by the solemn 
Compact of Union, entered into by the several members 
thereof, under the Constitution ? The legitimate conse- 
quences flowing from this great truth, if it be a truth, 
will be the subject of a farther talk when I hear what 
you have to say in reply to the premises. I am now 
through for the present. 

Is not the Constitution, as appears not only from the 
history of its formation thus given, but from its face, a 
Compact between Sovereign States ? 



COLLOQUY VII. 

WEBSTER ON THE CONSTITUTION — COMMENTS. 

Prof. Norton. When I declined replying to your ques- 
tion, I preferred to wait until you got through with all 
you had to say or offer in reference to the action of the 
several States upon the adoption of the Constitution. 
My object was to reply to all together. This I will now 
endeavor to do, and as my opinions upon the whole sub- 
ject have been so much better expressed by Mr. Web- 
ster, the great recognized Expounder of the Constitution, 
you will allow me to let him reply to you instead of my 
undertaking to do it myself. This whole subject was 
thoroughly and ably discussed in the United States Senate, 
in 1833, I think, upon a set of Resolutions presented to 
that body by Mr. Calhoun, in the days of Nullification. 
Have you these Resolutions and Mr. Webster's speech 
upon them ? 

Mr. Stephens. Yes. Here are Mr. Calhoun's Resolu- 
tions you refer^-to. They were oftered by him on the 
22d January, 1833, the day after what was called the 
Force Bill,%gainst South Carolina, was introduced into 
the Senate.* The Force Bill was taken up first. Mr. 
Calhoun spoke against that. But Mr. Webster, in rising 
io speak, when that measure was before the Senate, did 
not reply to Mr. Calhoun upon it, but called for the 
reading of these Resolutions, and directed his whole 

*JVi7es's Begister^ vol. xliii, Appendix, p. 170. 
298 



Col. VII.] WEBSTER ON THE CONSTITUTION. 299 

argument against them. This was on the IGth Febru- 
ary, 1833.* Here is his speech. The Resolutions are 
in these words : 

'■'•Resolved, That the people of the several States, com- 
posing these United States, are united as Parties to a 
Constitutional Compact, to which the people of each 
State acceded as a separate Sovereign community, each 
binding itself by its own particular ratification ; and that 
the Union, of which the said Compact is the bond, is a 
Union between the States ratifying the same. 

'•'■Resolved, That the people of the several States, thus 
united by the Constitutional Compact, in forming tnat 
instrument, and in creating a General Government to carry 
into effect the objects for which they were formed, dele- 
gated to that Government, for that purpose, certain defi- 
nite powers, to be exercised jointly, reserving, at the same 
time, each State to itself, the residuary mass of powers, to 
be exercised by its own separate Government ; and that 
whenever the General Government assumes the exercise of 
powers not delegated by the Compact, its acts are unauthor- 
ized, and are of no effect ; and that the same Government 
is not made the final judge of the powers delegated to it, 
since that would make its discretion, and not the Consti- 
tution, the measure of its powers; but that, as in all 
other cases of Compact among Sovereign parties, without 
any common judge, each has an equal right to judge for 
itself, as well of the infraction as of the moje and meas- 
ure of redress. 

'^Resolved, That the assertions, that the people of 
these United States, taken collectively as individuals, are 
now, or ever have been, united on the principle of the 
Hocial Compact, and, as such, are now formed into one 



* Mles^s Begister, vol. xliii, Appendix^ p. 170. 



300 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

nation or people, or that they liave ever been so united 
in any one stage of their political existence ; that the 
people of the several States composing the Union have 
not, as members thereof, retained their Sovereignty ; that 
the allegiance of their citizens has been transferred to the 
General Government; that they have parted with the 
right of punishing treason through their respective State 
Governments; and that they have not the right of judg- 
ing in the last resort as to the extent of the powers re- 
served, and of consequence of those delegated, — are not 
only without foundation in truth, but are contrary to the 
most certain and plain historical facts, and the clearest 
deductions of reason ; and that all exercise of power on 
the part of the General Government, or any of its depart- 
ments, claiming authority from such erroneous assump- 
tions, must of necessity be unconstitutional, — must tend, 
directly and inevitably, to subvert the Sovereignty of the 
States, to destroy the Federal character of the Union, and 
to rear o»a its ruins a consolidated Government, without 
Constitutional check or limitation, and which mast neces- 
sarily terminate in the loss of liberty itself." 

Prof. Norton. Yes, these are the Resolutions I refer 
to, and now let me read such parts of Mr. Webster's 
speech against them as I think utterly demolish them 
and the whole superstructure of your argument, which is 
but an attempt to sustain the principles set forth in these 
Resolutions. 

Mr. Stephens. Only so far as they maintain the propo- 
sition that the Constitution of the United States is a 
Compact between the States, and that the Government 
instituted by it is a Federal or Confederated Republic. 
This is the position which I maintain that I have estab- 
lished. 

Prof, NjRton. Well, then, only to the extent of utterly 




&^-. 



'-^ 



Coi. YII.] WEBSTER ON THE CONSTITUTION. 301 

demolishing that position will I read from Mr. Webster's 
speech. 

"The Resolutions," said Mr. Webster, ''introduced by 
the gentleman, were apparently drawn up with care, and 
brought forward upon deliberation. I shall not be in 
danger, therefore, of misunderstanding him, or those who 
agree with him, if I proceed at once to these Resolutions, 
and consider them as an authentic statement of those 
opinions upon the great Constitutional question, by which 
the recent proceedings in South Carolina are attempted 
to be justified. 

" These Resolutions are three in number. 
"The third seems intended to enumerate, and to deny, 
the several opinions expressed in the President's procla- 
mation, respecting the nature and powers of this Govern- 
ment. Of this third Resolution, I purpose, at present, to 
take no particular notice. 

"The first two Resolutions of the honorable member 
affirm these propositions, viz. : — 

" 1. That the political system under which we live, and 
under which Congress is now assembled, is a Compact, to 
which the people of the several States, as separate and 
Sovereign communities, are the parties. 

" 2. That these Sovereign parties have a right to judge, 
each for itself, of any alleged violation of the Constitu- 
tion by Congress; and in case of such violation, to choose, 
each for itself, its own mode and measure of redress. 

"It is true, sir, that the honorable member calls this a 
* Constitutional' Compact ; but still he affirms it to be a 
Compact between Sovereign States. What precise mean- 
in"-, then, does he attach to the term Const itutio) tal ? 
When applied to Compacts between Sovereign States, 
the term Comtiiutioiial affixes to the word Comjwct no 
definite idea. Were we to hear of a Constitutional league 



302 CONSTITUTIOXAL YIEW OF THE WAR. [Vol. I 

or treaty between England and France, or a Constitu- 
tional Convention between Austria and Russia, we should 
not understand what could be intended by such a league, 
such a treaty, or such a Convention. In these connec- 
tions, the word is void of all meaning ; and yet, sir, it is 
easy, quite easy, to see why the honorable gentleman 
has used it in these Resolutions. He cannot open the 
book, and look upon our written frame of Government, 
without seeing that it is called a Gonstitution. This may 
well be appalling to him. It threatens his whole doctrine 
of Compact, and its darling derivatives, Nullification and 
Secession, with instant confutation. Because, if he admits 
our instrument of Government to be a Constitution, then, 
for til at very reason, it is not a Compact betv/een Sove- 
reigns; a Constitution of Government and a Compact 
between Sovereign powers being things essentially unlike 
in their very natures, and incapable of ever being the 
same. Yet the word Constitution is on the very front of 
the instrument. He cannot overlook it. He seeks, 
therefore, to compromise the matter, and to sink all the 
substantial sense of the word, while he retains a resem- 
blance of the sound. He introduces a new word of his 
own, viz., Compact, as importing the principal idea, and 
designed to play the principal part, and degrades Consti- 
tidion into an insignificant, idle epithet, attached to Com- 
pact. The whole then stands as a * Constitutional Com- 
pact T And in this way he hopes to pass off a plausible 
gloss, as satisfying the words of the instrument. But he 
will find himself disappointed. Sir, I must say to the 
honorable gentleman, that, in our American political 
grammar, Constitution is a noun substantive ; it imports 
a distinct and clear idea of itself; and it is not to lose its 
importance and dignity, it is not to be turned into a poor, 
Rmbiguous, senseless, unmeaning adjective, for the pur- 



Cor,. YII.l WEBSTER ON THE CONSTITUTION. 303 

pose of accommodating any new set of political notions. 
Sir, we reject his new rules of syntax altogether. We 
will not give up our forms of political speech to the gram- 
marians of the school of Nullification. By the Constitu- 
tion, we mean, not a 'Constitutional Compact,' but, simply 
and directly, the Constitution, the fundamental law ; and 
if there be one word in the language which the people ol 
the United States understand, this is that word.* We 
know no more of a Constitutional Compact between Sove- 
reign powers, than we know of a Constitutional indenture 
of copartnership, a Constitutional deed of conveyance or a 
Constitutional bill of exchange. But we know what the 
Constitution is ; we know what the plainly written, funda- 
mental law is ; we know what the bond of our Union and 
the security of our liberties is ; and we mean to maintain 
and to defend it, in its plain sense and unsophisticated 
meaning. 

" The sense of the gentleman's proposition, therefore, 
is not at all affected, one way or the other, by the use of 
this word. That proposition still is, that our system of 
Government is but a Compact between the people of sepa- 
rate and Sovereign States. 

"Was it Mirabeau, Mr. President, or some other master 
of the human passions, who has told us that words are 
things ? They are indeed, things, and things of mighty 
influence, not only in addresses to the passions and high- 
wrought feelings of mankind, but in the discussion of 
legal and political questions also; because a just conclu- 
sion is often avoided, or a false one reached, by the adroit 
substitution of one phrase, or one word, for another. Of 
this, we have, I think, another example in the Resolution!! 
before us. 

* Ante J p. 51, et seq. 



304 COXSTITUTIONxVL VIEW OF THE WAR. [Vol. T 

''The first Resolution declares that the people of 
the several States 'accedecV to the Constitution, or to the 
Constitutional Compact, as it is called. Tnis word 
' accede,' not found either in the Constitution it^elf, or in 
the ratification of it by any one of the States has been 
chosen for use here, doubtless, not without a well-con- 
sidered purpose. 

" The natural converse of accession is secession ; and, 
therefore, when it is stated that the people of the States 
acceded to the Union, it may be more plausibly argued 
that they may secede from it. If, in adopting the Con- 
stitution, nothing was done but acceding to a Compact, 
nothing would seem necessary, to break it up, but to 
secede from the same Compact. But the term is wholly 
out of place.* Accession, as a word applied to political 
associations, implies coming into a league, treaty, or 
confederacy, by one hitherto a stranger to it ; and seces- 
sion implies departing from such league or confederacy. 
The people of the United States have used no such form 
of expression in establishing the present Government. 
They do not say that they accede to a league, but they 
declare that ihay ordain and estahlisli a Constitution. 
Such are the very words of the instrument itself; and hi 
all the States, without an exception, the language used 
by their Conventions was, that they ' ratified the Consti- 
tution;' some of them employing the additional word? 
* assented to' and ' adopted,' but all of them ratifying.' 

" There is more importance tlian may, at first sight, 
appear, in the introduction of this new word by the 
honorable mover of these resolutions. Its adoption and 
use are indispensable to maintain those premises from 
which his main conclusion is to be afterwards drawn. 

* Antc^ p. 155, «t ^eq. 



Col. VIL] WEBSTER ON THE CONSTITUTION 305 

But before showing that, allow me to remark, that tliis 
phraseology tends to keep out of sight the just view of 
a previous political history, as well as to suggest wrong 
ideas as to what was actually done when the present 
Constitution was agreed to. In 1789, and before this 
Constitution was adopted, the United States had already 
been in a Union, more or less close, for hftcen years. 
At least as far back as the meeting of the first Congress, 
in 1774, they had been, in some measure, and for some 
National purposes, united together. Before the Con- 
federation of 1781, they had declared independence 
jointly, and had carried on the w\ar jointly, both by sea 
and land ; and this not as separate States, but as one 
people.'-'^ When, therefore, they formed that Confedera- 
tion, and adopted its articles as articles of perpetual 
Union, they did not come together for the first time ; 
and, therefore, they did not speak of the States as 
acceding to the Confederation, althougli it was a league, 
and rested on nothing but plighted f\xith for its perform- 
ance. Yet, even then, the States were not strangers to 
each other ; there was a bond of Union already subsist- 
in^ between them ; they were associated United States ; 
and the object of the Confederation was to make a 
stronger and better bond of Union. Their representa- 
tives deliberated together on these proposed Articles of 
Confederation, and, being authorized by their respective 
States, finally ' ratified' and confirmed them. Inasmuch 
as they were already in Union, they did not speak of 
acceding to the new Articles of Confederation, but of 
ratifying and cmfirming them; and this language was 
not used inadvertently, because, in the same instrument, 
accession is used in its proper sense, when applied to 



* Ante^ p. GG, et seq. 
20 



306 CONSTITUTIONAL VIEW OF THE WAR. [Voi. L 

Caiiadca, which was altogether a stranger to the existing 
Union. 'Canada, says the eleventh article, ^acceding to 
this Confederation, and joining in the measures of the 
United States, shall be admitted into the Union.' 

" Having thus used the terms ratify and confirm, even 
in regard to the old Confederation, it would have been 
strange, indeed, if the people of the United States, after 
its formation, and when they came to establish the 
present Constitution, had spoken of the States, or the 
people of the States, as accedui/j to this Constitution. 
Such language would have been ill suited to the occasion. 
It would have implied an existing separation, or disunion, 
among the States, such as had never existed since 1774. 
No such language, therefore, was used. The language, 
actually employed, is adopt, ratify, ordain, estahllsli. 

" Therefore, sir, since any State, before she can prove 
her right to dissolve the Union, must show her authority 
to undo what has been done; no State is at liberty to 
secede, on the ground that she and other States have 
done nothing but accede. She must show that she has 
a right to reverse what has been ordained, to unsettle and 
overthrow what has been established, to reject what the 
people have adopted, and to hreah np what they have 
ratified; because these are the terms which express the 
transactions which have actually taken place. In other 
words, she must show her right to make a revolution. 
V *'If, Mr. President, in drawing these Resolutions, the 

honorable member had confined himself to the use of 
Constitutional language, there would have been a wide 
and awful hiatus between his premises and his conclu- 
sions. Leaving out the two words Compact and acces- 
sion, which are not Constitutional modes of expression, 
and stating the matter precisely as the truth is, his first 
Resolution would have affirmed that the peop>le of tlve 



Col. VIL] WEBSTER ON THE CONSTITUTION. 307 

several States ratified iliis Const itui ton, or fijrm of Goccrn- 
ment. These are the very words of South Carolina 
herself, in her act of ratification. Let, then, his first 
Resolution tell the exact truth ; let it state the i'uct 
precisely as it exists ; let it say that the people of the 
several States ratified a Constitution, or form of Govern- 
ment, and then, sir, what will become of his inference 
in his second Resolution, which is in these words, viz.: 
'That, as in all other cases of Compact among Sovereign 
parties, each has an equal right to judge for itself, as 
well of the infraction as of the mode and measure of 
redress ?' It is obvious, is it not, sir ? that this conclu- 
sion requires for its support quite other premises ; it 
requires premises which speak of accession and of Com- 
2xict between Sovereign powers; and, without such 
premises, it is altogether unmeaning. 

" Mr. President, if the honorable member will truly 
state what the people did in forming this Constitution, 
and then state what they must do if they would now 
undo what they then did, he will unavoidably state a 
case of revolution. Let us see if it be not so. He must 
state, in the first place, that the people of the several 
States adopted and ratified this Constitution, or form of 
Government ; and, in the next place, he must state that 
they must have a right to undo this ; that is to say, 
that they have a right to discard the form of Government 
which they have adopted, and to break up the Constitu- 
tion which they have ratified. Now, sir, this is neither 
more nor less than saying that they have a right to make 
a rc-rolution. To reject an established Government, to 
break up a political Constitution, is revolution. 

" I deny that any man can state accurately what was 
done by the people, in establishing the present Constitu- 
tion, and then state accurately what the people, cr any 



803 CONSTITUTIONAL yiEA\^ OF THE WAR. [Vol. I. 

part of them, must now clo to got rid of its obligations, 
without stating an undeniable case of the overthrow of 
Government. I admit, of course, that the people may, 
if they choose, overthrow the Government. But, then, 
Vthat is revolution. The doctrine now contended for is, 
tliiit, by Nallijication or Secession, the obligations and 
authority of the Government may be set aside or rejected, 
without revolution. But that is what I denj^ ; and whnt 
I say is, that no man can state the case w^th histori'^al 
accuracy, and in Constitutional language, without show- 
ing that the honorable gentleman's right, as asserted in 
his conclusion, is a revolutionary right merely ; tliat it 
does not and cannot exist under the Constitution, or 
agreeably to the Constitution, but can come into existence 
only when the Constitution is overthrown. This is the 
reason, sir, which makes it necessary to abandon tlie 
use of Constitutional language for a new vocabulary, and 
to substitute, in the place of plain historical facts, a series 
of assumptions. This is the reason why it is necessary 
to give new names to things, to speak of the Constitution, 
not as a Constitution, but as a Compact, and of the rati- 
fications by the people, not as ratifications, but as acts 
of accession. 

'' Sir, I intend to hold the gentleman to the written 
record. In the discussion of a Cc^istitutional question, I 
intend to impose upon him the restraints of Constitutional 
language. The people have ordained a Constitution ; can 
+hey reject it w^ithout revolution ? They have established 
a form of Government ; can they overthrow it without 
revolution '?' These are the true questions. 

"Allow me, now, Mr. President, to inquire furtlier 
into the extent of the jDropositions contained in the Reso- 
lutions, and their necessary consequences. 

" ^Yhere Sovereign communities are parties, there is 



Col. Yir.] WEBSTER ON THE CONSTITUTION. 309 

no essential difference between a Compact, a Confedera- 
tion, and a League. Tlie}^ all equally rest on the pli^^lited 
faith of the Sovereign party. A League, or Confederacy, 
is but a subsisting or continuing treaty. 

" The gentleman's Resolutions, then, affirm, in effect, 
that these twenty-four United States are held together 
only by a subsisting treaty, resting for its fulfdment 
and continuance on no inherent power of its own, but 
on the plighted faith of each State ; or, in other words, 
that our Union is but a league ; and, as a consequence 
from this proposition, they further affirm that as Sove- 
reigns are subject to no superior power, the States must 
judge, each for itself, of any alleged violation of the 
league ; and if such violation be supposed to have occurred, 
each may adopt any mode or measure of redress which it 
shall think proper. 

" Other consequences naturally follow, too, from the 
main proposition. If a league between Sovereign powers 
have no limitation as to the time of its duration, and con- 
tain nothing making it perpetual, it subsists only during 
the good pleasure of the parties, although no violation be 
complained of If, in the opinion of either party, it be 
violated, such party mny say that he will no longer 
fulfil its obligations on his part, but will consider the 
whole League or Compact at an end, although it might 
be one of its stipulaSons that it should be perpetual. 
Uj)on this principle, the Congress of the United States, 
in 1798, declared null and void the treaty of alliance be- 
tween the United States and France, though it professed 
to be a perpetual alliance. 

" If the violation of the League be accompanied with 
serious injuries, the suffering party, being sole judge of 
his own mod and measure of redress, has a right to 
indemnify himself by reprisals on the offending members 



310 CONSTITUTIONAL VIEW OF THE WAR. [Yoi.. 1. 

of the League; and reprisals, if the circumstances of the 
case require it, may be foliowed by direct, avowed, and 
public war. 

*' Tlie necessary import of the RcsoUition, therefore, is, 
that the United States are connected only by a League ; 
that it is in the good pleasure of every State to decide 
how long she will choose to remain a member of the 
League ; that any State may determine the extent of her 
own obligations under it, and accept or reject what shall 
be decided by the whole ; that she may also determine 
whether her rights have been violated, what is the extent 
of the injury done her, and wdiat mode and measure of 
redress her wrongs may make it fit and expedient for her 
to adopt. The result of the whole is, that any State may 
secede at pleasure ; that any State may resist a law which 
she herself may choose to say exceeds the power of Con- 
gress ; and that, as a Sovereign power, she may redress 
her own grievances, by her own arm, at her own discre- 
tion. She may make reprisals ; she may cruise against 
the property of other members of the League ; she may 
authorize captures, and make open war. 

" If, sir, this be our political condition, it is time the 
people of the United States understood it. Let us look 
for a moment to the practical consequences of these 
opinions. One State, holding an Embargo law unconsti- 
tutional, may declare her opinion, and withdraw from 
the Union. She secedes. Another, forming and express- 
ing the same judgment on a law laying duties on imports, 
may withdraw also. She secedes. And as, in her opinion, 
money has been taken out of the pockets of her citizens 
illegally, under pretence of this law, and as she has power 
to redress their wrongs, she may demand satisfaction ; 
and, if refused, she may take it with a strong hand. The 
geutleman has himself pronounced the collection oi 



Col. YII.] AVEBSTER ON ^i'HE CONSTITUTION. 311 

duties, under existing laws, to be nothinii- but robbery. 
Robbers, of course, nuiy be rightiuily dispossessed of tbi; 
fruits of their flagitious crimes ; aud, therefore, repris^ibs, 
iuipositions on the commerce of other States, foreign alli- 
ances against them, or open war, are all modes of redress 
justly open to the discretion and choice of South Caro 
lina; for she is to judge of her own rights, and to seek 
satisfaction for her own wrongs, in her own wa}^ 

"But, sir, a third State is of opinion, not only that 
these laws of imposts are Constitutional, but that it is the 
absolute duty of Congress to pass and to maintain such 
laws ; and that by omitting to pass and maintain them, 
its Constitutional obligations would be grossly disregarded. 
She, herself, relinquislied the powder of protection, she 
might allege, and allQgii truly, and gave it up to Congress, 
on the faith that Congress would exercise it ; if Congress 
now refuse to exercise it. Congress does, as she may insist, 
break the condition of the grant, and thus manifestly 
violate the Constitution; and for this violation of the 
Constitution, slw may threaten to secede also. Virginia 
may secede, and hold the fortresses in the Chesapeake. 
The Western States may secede, and take to their own 
use the public lands. Louisiana may secede, if she choose, 
form a foreign alliance, and hold the mouth of the Missis- 
sippi. If one State may secede, ten may do so, twenty 
may do so, tw^enty-three may do so. Sir, as these secessions 
go on, one after another, what is to constitute the United 
States? AVhose will be the army? Whose the navy? 
^Vho will pay the debts ? Who fulfil the public treaties ? 
Who perform the Constitutional guaranties ? AVho govern 
this District and the Territories ? Who retain the public 
property ? 

'' Mr. President, every man must see that these are all 
questions which can arise only after a revolution. Th^y 



312 CONSTITUTIONAL YIEW OF THE WAR [Vol.1. 

presuppose the breaking up of the Government. While 
the Constitution Lasts, they are repressed ; they spring up 
to annoy and startle us only from its grave. 

" The Constitution does not provide for events which 
must be preceded by its own destruction. Secession, 
therefore, since it must bring these consequences with it, 
is Revolutionary, and Nullification is equally Revo- 
lutionary. What is revolution ? Why, sir, that is revo- 
lution which overturns, or controls, or successfully resists 
the existing public authority; that which arrests the 
exercise of the supreme power ; that wdiich introduces a 
new Paramount authority into the rule of the State. 
Now, sir, this is the precise object of Nullification. It 
attempts to supersede the supreme legislative authority. 
It arrests the arm of the executive magistrate. It inter- 
rupts the exercise of the accustomed judicial power. 
Under the name of an ordinance, it declares null and 
void, within the State, all the revenue laws of the United 
States. Is not this revolutionary ? Sir, so soon as this 
ordinance shall be carried into effect, a revolution Avill 
have commenced in South Carolina. She Avill have 
thrown off the authority to which her citizens have 
heretofore been subject. She will have declared her 
own opinions and her own will, to be above the laws and 
above the power of those Avho are intrusted with their 
administration. If she makes good these declarations, 
she is revolutionized. As to her, it is as distinctly a 
change of the supreme power, as the American Revolu- 
tion of 1776: That revolution did not subvert Govern- 
ment in all its forms. It did not subvert local laws and 
municipal administrations. It only threw off the domin- 
ion of a power claiming to be superior, and to have a 
right, in many important respects, to exercise legislative 
authority. Thinking this authority to have been usurped 



Col. YII.] WEBSTER OX THE CONSTITUTION. 313 

or abused, the American Colonies, now the United States 
bade it defiance, and freed themselves from it by means 
of a revolution. But that revolution left them with their 
own municipal laws still, and the forms of local Govern- 
ment. If Carolina now shall effectually resist the laws 
of Congress; if she shall be her own judge, take hei 
remedy into her own hands, obey the laws of the Union 
when she pleases, and disobey them when she pleases, she 
will relieve herself from a Paramount power as distinctly 
as the American Colonies did the same thing in 1776. In 
other words, she will achieve, as to herself, a revolution. 

"But, sir, while practical Nullification in South Caro- 
lina would be, as to herself, actual and distinct revolu- 
tion, its necessary tendency must also be to spread revo- 
lution, and to break up the Constitution, as to all the 
other States. It strikes a deadly blow at the vital prin- 
ciple of the whole Union. To allow State resistance to 
the laws of Congress to be rightful and proper, to admit 
Nullification in some States, and yet not expect to see a 
dismemberment of the entire Government, appears to me 
the Avildest illusion, and the most extravagant folly. 
The gentleman seems not conscious of the direction or the 
rapidity of his own course. The current of his opinions 
sweeps him along, he knows not whither. To begin 
with Nullification, with the avowed intent, nevertheless, 
not to proceed to secession, dismemberment, and general 
revolution, is as if one were to take the plunge of Niagara, 
and cry out that he would stop half-way down. In the 
one case, as in the other, the rash adventurer must go to 
the bottom of the dark abyss below, were it not that the 
abyss has no discovered bottom. 

" Nullification, if successful, arrests the power of the 
law, absolves citizens from their duty, subverts the 
foundation both of protection and obedience, dispen«*e8 



814 CONSTITUTIONAL YIEW OF THE WAR [Vol. I 

With oaths and obligations of allegiance, and elevates 
another authority to supreme command. Is not this 
revolution ? • And it raises to supreme command four 
and twenty distinct powers, each professing to be under 
a General Government, and yet each setting its laws at 
defiance at pleasure. Is not this anarchy, as well as 
revolution? Sir, the Constitution of the United States 
was received as a whole, and for the whole country. If 
it cannot stand altogether, it cannot stand in parts ; and 
if the lav/s cainiot be executed everywhere, they cannot 
long be executed anywhere. The gentleman very well 
knows that all duties and imposts must be uniform 
throughout the country. He know^s that we cannot 
have one rule or one law for South Carolina, and another 
for other States. He must see, therefore, and does see, 
and every man sees, that the only alternative is a repeal 
of the laws throughout the whole Union, or their execu- 
tion in Carolina as well as elsewhere. And this repeal 
is demanded because a single State interposes her veto, 
and threatens resistance ! The result of the gentleman's 
opinion, or rather the very text of his doctrine, is, that 
no act of Congress can bind all tlie States, the Constitu- 
tionality of which is not admitted by all ; or, in other 
words, that no single State is bound, against its own dis- 
sent, by a law of imposts. This is precisely the evil 
experienced under the old Confederation, and for remedy 
of which this Constitution was adopted. The leading 
object in establishing this Government, an oljject forced 
on the country by the condition of the times, and the 
absolute necessity of the law, was to give to Congress 
power to lay and collect imposts loWiuiU the conse)d of 
particular States. The Revolutionary debt remained un- 
]iaid ; the National treasury was bankrupt ; the country 
was destitute of credit; Congress issued its requisitions 



Col. VII.] WEBSTER ON THE CONSTITUTION. 315 

on the States, and the States neglected them ; there was 
no power of coercion but war; Congress could not Iny 
imposts, or other taxes, by its own authority ; the whole 
General Government, therefore, was little more than a 
name. The Articles of Confederation, as to purposes of 
revenue and linance, were nearly a dead letter. The 
country sought to escape from this condition, at once 
feeble and disgraceful, by constituting a Government 
which should have power, of itself, to lay duties and 
taxes, and to pay the public debt, and provide for the 
general welfare ; and to lay these duties and taxes in all 
the States, without asking the consent of the State Gov- 
ernments. This was the very power on which the new 
Constitution w^as to depend for all its ability to do good ; 
and without it, it can be no Government, now or at any 
time. Yet, sir, it is precisely against this power, so 
absolutely indispensable to the very being of the Govern- 
ment, that South Carolina directs her ordinance. She 
attacks the Government in its authority to raise revenue, 
the very mainspring of the whole system ; and if she 
succeed, every movement of that system must nievitably 
cease. It is of no avail that she declares that she does 
not resist the law as a revenue law, but as a law for pro- 
tectinsf manufactures. It is a revenue law; it is the 
very law, by force of wdiich the revenue is collected ; if 
it be arrested in any State, the revenue ceases in that 
State ; it is, in a word, the sole reliance of the Govern- 
ment for the means of maintaining itself and performing 
its duties. 

" Mr. President, the alleged right of a State to decide 
Constitutional questions for herself, necessarily leads to 
force, because other States must have the same right, and 
because different States will decide differently ; and when 
these questions arise between States, if there be no supe- 



316 CONSTITUTIONAL VIEW OF THE WAR. [Tol. 1 

rior po^^'er, they can be decided only by the hiw of force. 
On entering into the Union, the people of each State 
gave up a part of their own power to make laws for them- 
selves, in consideration that, as to common objects, they 
should have a part in making laws for other States. In 
other words, the people of all the States agreed to create 
a common Government, to be conducted by common 
counsels. Pennsylvania, for example, yielded the right 
of laying imposts in her own ports, in consideration that 
the new Government, in which she was to have a share, 
should possess the power of laying imposts on all the 
States. If South Carolina now refuses to submit to this 
power, she breaks the condition on which other States 
entered into the Union. She partakes of the common 
counsels, and therein assists to bind others, while she 
refuses to be bound herself. It makes no difference in the 
case, whether she does all this without reason or pretext, 
or whether she sets up as a reason, that, in her judgment, 
the acts complained of are unconstitutional. In the 
judgment of other States, they are not so. It is nothing 
to them that she offers some reason, or some apology for 
her conduct, if it be one which they do not admit. It is 
not to be expected that any State will violate her duty 
without some plausible pretext. That would be too rash 
a defiance of the opinion of mankind. But if it be a pre- 
text which lies in her own breast; if it be no more than 
an opinion which she says she has performed, how can 
other States be satisfied with this ? How can they allow 
her to be judge of her own obligations? Or, if she may 
judge of her obligations, may they not judge of their 
rights also? May not the twenty-three entertain an 
opinion as well as the twenty-fourth ? And if it be 
tiieir right, in their own opinion, as expressed in the 
common council, to enforce the law against her, how is 



Col. TIL] WEBSTER ON THE CONSTITUTION. 317 

she to say tliat her right and her opinion are to he every 
thing, and their right and their opinion nothing ? 

" Mr, President, if we are to receive the Constitution 
as the text, and then to hay down in its margin the con- 
tradictory commentaries which have heen, and winch 
may he, made hy different States, the whole page would bo 
a polyglot indeed. It would speak with as many tongues 
as the builders of Babel, and in dialects as much confused, 
and mutually as unintelligible. The very instance now 
before us presents a practical illustration. The law of 
the last session is declared unconstitutional in South 
Carolina, and obedience to it is refused. In other States, 
it is admitted to be strictly Constitutional. You walk 
over the limits of its authority, therefore, when you pass 
a State line. On one side it is law, on the other side a 
nullity ; and yet it is passed by a common Government, 
having the same authority in all the States. 

" Such, sir, are the inevitable results of this doctrine. 
Beainuing with the original error, that the Constitution 
of Uie United States is nothing but a Compact between 
Sovereign States ; asserting, in the next step, that each 
State has a right to be its own sole judge of the extent 
of its own obligations, and, consequently, of the Consti- 
tutionality of laws of Congress ; and, in the next, that 
it may oppose whatever it sees fit to declare unconstitu- 
tional, and that it decides, for itself, on the mode and 
measure of redress — the argument arrives, at once, at the 
conclusion, that what a State dissents from, it may nul- 
lify ; wliat it opposes, it may oppose by force; what it 
decides for itself, it may execute by its own power; and 
that, in short, it is, itself, supreme over the legislation 
of Congress, and supreme over the decisions of the 
national judicature; supreme over the Constitution of 
the country ; supreme over the supreme law of the 



J 



818 CONSTITUTIONAL TIEW OF THE WAR. [Vol. I. 

land. Plowever it seeks to protect itself against these 
plain inferences, by saying that an unconstitntional law 
is no law, and that it only opposes such laws as are nn- 
constitutional, yet, this does not, in the slightest degree, 
vary the result ; since it insists on deciding this question 
for itself; and, in opposition to reason and argument, in 
opposition to practice and experience, in opposition to 
the judgment of others, having an equal right to judge, 
it says, only, ' Such is my opinion, and my opinion shall 
be my law, and I will support it by my own strong hand. 
I denounce the law ; I declare it unconstitutional ; that 
is enough ; it shall not be executed. Men, in arms, are 
ready to resist its execution. An attempt to enforce it 
shall cover the land with blood. Elsewhere, it may be 
binding ; but here it is trampled under foot.' 

" This, sir, is practical NuUiMcation. 

*' And now, sir, against all these theories and opinions, 
I maintain : — 

^' 1. That the Constitution of the United States is not 
a League, Confederacy or Compact, between the people of 
the several States in their Sovereign capacities; but a 
Government proper, founded oh the adoption of the 
people, and creating direct relations between itself and 
individuals. 

" 2. That no State authority has power to dissolve these 
relations; that nothing can dissolve them but revolu- 
tion ; and tliat, consequently, there can be no such thiug 
as Secession without revolution. 

" 3. That there is a supreme law, consisting of the 
Constitution of the United States, and Acts of Congress, 
passed in pursuance of it, and treaties; and that, in 
cases not capable of assuming the character of a suit in 
law or equity, Congress must judge of, and, finally, in- 
terpret, the supreme law, so often as it has occasion to 



Cou YTT.] WEBSTKR ON TTTK CONS'riTUTTO>^. 319 

piiss acts of legislation ; and, in cases capable of assum- 
ing, and actually assuming, the character of a suit, the 
Supreme Court of the United States is the final inter- 
preter. 

"4. That an attempt by a State to abrogate, annul, 
or nullify an Act of Congress, or to arrest its operation 
within her limits, on the ground that, in her opinion, 
such law is unconstitutional, is a direct usurpation on the 
just powers of the General Government, and on the 
equal rights of other States ; a plain violation of the 
Constitution, and a proceeding essentially Revolutionary 
in its character and tendency. 

"Whether the Constitution be a Compact between 
States in their Sovereign capacities, is a question which 
must be mainly argued from what is contained in the 
instrument itself. We all agree that it is an instrument 
which has in some way been clothed with power. We 
all admit that it speaks with authority. The first ques- 
tion then is, what does it say of itself? What does 
it purport to be ? Does it style itself a League, Con- 
federacy, or Compact between Sovereign States ? It is 
to be remembered, sir, that the Constitution began to 
speak only after its adoption. Until it was ratified by 
nine States, it was but a proposal, the mere draught of 
an instrument. It was like a deed drawn, but not exe- 
cuted. The Convention had framed it; sent it to Con- 
gress, then sitting under the Confederation ; Congress 
had transmitted it to the State Legislatures; and by 
these last it was laid before Conventions of the people 
in the several States. All this while it was inoperative 
paper. It hat received no stamp of authority, no sanc- 
tion ; it spoke no language. But v/hen ratified by the 
people in their respective Conventions, then it had a 
voice, and spoke authentically. Every word in it had 



320 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

then received the sanction of the popular will, and v/as 
to be received as the expression of that will. V/hat the 
Constitution says of itself, therefore, is as conclusive as 
what it says on any other point. Does it call itself a 
'Compact?' Certainly not. It uses the word Compact 
but once, and that is when it declares that the States 
shall enter into no Compact. Does it call itself a 
'League,' a 'Confederacy,' a 'subsisting Treaty between 
the States ?' Certainly not. There is not a particle of 
such language in all its pages. But it declares itself 
a Constitution. What is a Constitution? Certainly 
not a League, Compact, or Confederacy, but a funda- 
mental hi'w. That fundamental regulation which de- 
termines the manner in which the public authority is to 
be executed, is what forms the Constitution of a State. 
Those primary rules which concern the body itself, and 
the very being of the political society, the for]n of 
Government, and the manner in which power is to be 
exercised, — all, in a word, which form together the Con- 
stitution of a State, these are the fundamental laws. 
This, sir, is the language of the public writers. But do 
we need to be informed, in this country, what a Constl' 
tutlon is? Is it not an idea perfectly familiar, definite, 
and well settled? We are at no loss to understand what 
is meant by the Constitution of one of the States ; and 
the Constitution of the United States speaks of itself as 
being an instrument of the same nature. It says, this 
Constitution shall be the law of the land, any thing in 
any State Constitution to the contrary, notwithstanding. 
And it speaks of itself, too, in plain contradistinction 
from a Confederation; for it says that all debts con- 
tracted, and all engagements entered into, by the United 
States, shall be as valid under this Constitution as under 
the Confederation. It does not say, as valid under this 



Col. YII.l WEBSTER ON TIIE CONSTITUTION. 32i 

Compact, or this League, or this Confederation, as under 
the former Confederation, but as valid under this Con- 
stitution. 

" This, then, sir, is declared to be a Constitution. A 
Constitution is the fundamental law of the State; and 
this is exprcssl}^ declared to be the supreme law. It is 
as if the people had said, ' We prescribe this funda- 
mental law,' or ' this supreme law,' for they do say that 
they establish this Constitution, and that it shall be 
the supreme law. They say that they ordain and esta- 
hlisli it. Now, sir, what is the common application of 
these words? We do not speak o^ ordaining Leagues 
and Compacts. If this was intended to bo a Compact 
or League, and the States to be parties to it, why was it 
not so said ? Why is there found no one expression, in 
the whole instrument, indicating such intent? The old 
Confederation was expressly called a League; and into 
this League it was declared that the States, as States, 
severally entered. Why was not similar language used 
in the Constitution, if a similar intention had existed ? 
Why was it not said, ^ the States enter into this new 
League,' 'the States form this new Confederation,' or 
* the States agree to this new Compact ?' Or why was it 
not said, in the language of the gentleman's Resolution, 
that the people of the several States acceded to this 
Compact in their Sovereign capacities? AVhat reason 
is there for supposing that the framers of the Constitu- 
tion rejected expressions appropriate to their own 
meaning, and adoj^ted others wholly at war with 
that meaning ? 

"Again, sir, the Constitution speaks of that political 
system which is established as ' the Government of the 
United States.' Is it not doing a strange violence to lan- 
guage to call a League or a Compact between Sovereign 

21 



322 CONSIITUTIONAL YIEW OF THE WAR. [Vol. I. 

po\Ters a Government ? The Government of a State is that 
organization in which the pohtical power resides. It is 
the political being created by the Constitution or funda- 
mental law. The broad and clear difference between a 
Government and a League or Compact is, that a Govern- 
ment is a body politic ; it has a will of its own ; and it 
possesses powers and fticulties to execute its own pur- 
poses. Every Compact looks to some power to enforce 
its stipulations. Even in a Compact between Sovereign 
communities, there always exists this ultimate reference 
to a power to insure its execution; although, in such 
case, this power is but the force of one party against the 
force of another ; that is to say, the power of v/ar. But 
a Gx)vernment executes its decisions b}^ its own supreme 
authority. Its use of force in compelling obedience to 
its own enactments is not war. It contemplates no 
opposing party having a right of resistance. It rests on 
its power to enforce its own will ; and when it ceases to 
possess this power, it is no longer a Government. 

" Mr. President, I concur so generally in the ver}^ able 
speech of the gentleman from Virginia, near me (Mr. 
Rives), that it is not without diffidence and regret, that 
I venture to differ with him on any point. His opinions, 
sir, are redolent of the doctrines of a very distinguished 
school, for which I have the highest regard, of whose 
doctrines I can say, what I can also say of the gentle- 
man's speech, that while I. concur in the results, I must 
be permitted to hesitate about some of the premises. I 
do not agree that the Constitution is a Compact between 
States in their Sovereign capacities. I do not agree, 
that, in strictness of language, it is a Compact at all. 
But I do agree that it is founded on consent or agree- 
ment, or on Compact, if the gentleman prefers that 
virord^ and means no more by it than voluntary consent 



Col. YIL] WEBSTER ON THE CONSTITUTION. 323 

or agreement. The Constitution, sir, is not a contract, 
but the result of a contract; meaning by contract no 
more than assent. Founded on consent, it is a Govern- 
ment proper. Adopted by the agreement of the people 
of the United States, when adopted, it has become a 
Constitution. The people have agreed to make a Consti- 
tution ; but, when made, that Constitution becomes what 
its name imports. It is no longer a mere agreement. 
Our laws, sir, have their foundation in the agreement or 
consent of the two Houses of Congress. We say, habit- 
ually, that one House proposes a bill, and the other 
agrees to it ; but the result of this agreement is not a 
Compact, but a law. The law, the statute, is not the 
agreement, but something created by the agreement ; 
and something which, when created, has a new charac- 
ter, and acts by its own authority. So the Constitution 
of the United States, founded in or on the consent of the 
people, may be said to rest on Compact or consent; but 
it is not itself the Compact, but its result. When the 
people agree to erect a Government, and actually erect 
it, the thing is done, and the agreement is at an end. 
The Compact is executed, and the end designed by it 
attained. Henceforth, the fruit of the agreement exists, 
but the agreement itself is merged in its own accomplish- 
ment; since there can be no longer a subsisting agree- 
ment or Compact to form a Constitution or Government, 
after that Constitution or Government has been actually 
formed and established. 

" It appears to me, Mr; President, that the plainest 
account of the establishment of this Government pre- 
sents the most just and philosophical view of its founda- 
tion. The people of the several States had their sepa- 
rate State Governments ; and between the States there 
also existed a Confederation. With this condition of 



-i 



S24 CONSTITUTIONAL YIEW OF THE W^ TJ. [Vol.1 

things the people were not satisfied, as the Confedera- 
tion had been found not to fulfil its intended objects. II 
was proposed, therefore, to erect a new, common Govern 
inent, which should possess certain dehnite powers, such 
as regarded the prosperity of the people of all the States, 
and to be formed upon the general model of American 
Constitutions. This proposal was assented to, and an 
instrument was presented to the people of the several 
States for their consideration. They approved it, and 
agreed to adopt it, as a Constitution. They executed that 
agreement ; they adopted the Constitution as a Constitu- 
tion, and henceforth it must stand as a Constitution until 
it shall be altogether destroyed. Now, sir, is not this 
the truth of the whole matter? And is not all that we 
have heard of Compact between Sovereign States the 
mere theoretical and artificial mode of reasoning upon 
the subject? a mode of reasoning which disregards plain 
facts for the sake of hypothesis ? 

" Mr. President, the nature of Sovereignty, or Sovereign 
poAver, has been extensively discussed by gentlemen on 
this occasion, as it generally is when the origin of our 
Government is debated. But I confess myself not entirely 
satisfied Avith arguments and illustrations drawn from 
that topic. The Sovereignty of Government is an idea 
belonging to the other side of the Atlantic. No such 
thing is known in North America. Our Governments 
are all limited. In Europe, Sovereignty is of feudal 
origin, and imports no more than the state of the Sove- 
reign. It comprises his rights, duties, exemptions, pre- 
rogatives, and powers. But with us, all power is with 
the people. They alone are Sovereign ; and they erect 
what Governments they please, and confer on them such 
powers as they please.. None of these Governments is 
Sovereign, in the European sense of the word, all being 



Col. VIL] WEBSTER ON THE CONSTITUTION. 325 

restrained by Constitutions. It seems to me, therefore, 
that we only perplex ourselves when we attempt to ex- 
plain the relations existing between the General Govern- 
ment and the several State Governments, according to 
those ideas of Sovereignty which prevail under systems 
essentially different from our own. 

" But, sir, to return to the Constitution itself, let me 
inquire what it relies, upon for its continuance and sup- 
port. I hear it often suggested, that tlie States, by 
refusing to appoint Senators and Electors, might bring 
this Government to an end. Perhaps that is true ; but 
the same may be said of the State Governments them- 
selves. Suppose the Legislature of a State, having the 
power to appoint the Governor and the Judges, should 
omit that duty, would not the State Government remain 
unorganized ? No doubt, all elective Governments may 
be broken up by a general abandonment, on the part of 
those intrusted with political powers, of theii appropriate 
duties. But one popular Government has, in this respect, 
as much security as another. The maintenance of this 
Constitution does not depend on the plighted faith of 
the States, as States, to support it ; and this again shows 
that it is not a League. It relies on individual duty and 
obligation. 

" The Constitution of the United States creates direct 
relations between this Government and individuals. 
This Government may punish individuals for treason, 
and all other crimes in the code, when committed against 
the United States. It has power, also, to tax individuals... 
in any mode, and to any extent; and it possesses the 
further power of demanding from individuals military 
service. Nothing, certainlj^, can more clearly distinguish 
a Government from a Confederation of States than the 
possession of these powers. No closer relations can exist 
between individuals and any Government 






326 CONSTITUTIONAL VIEW OF THE VI A R. [Vol.! 

" On the other hand, the Government owes higli and 
solemn duties to every citizen of the country. It is 
bound to protect him in his most important rights and 
interests. It makes war for his protection, and n.) other 
Government in the country can make war. It makes 
peace for his protection, and no other Government can 
make peace. It maintains armies and na\des for his 
defence and security, and no other Government is allowed 
to maintain them. He goes abroad beneath its flag, and 
carries over all the earth a National character imparted 
to him by this Government, and which no other Govern- 
ment can impart. In whatever relates to war, to peace, 
to commerce, he knows no other Government. All these, 
sir, are connections as dear and as sacred as can bind indi- 
viduals to any Government on earth. It is not, there- 
fore, a Compact between States, but a Government proper, 
operating directly upon individuals, yielding to them, 
protection on the one hand, and demanding from them 
obedience on the other. 

" There is no language in the whole Constitution appli- 
cable to a Confederation of States. If the States be parties, 
as States, what are their rights, and what their respectiva 
covenants and stipulations? And where are their rights, 
covenants, and stipulations expressed ? The States en- 
gage for nothing, they promise nothing. In the Articles 
of Confederation, they did make promises, and did enter 
into engagements, and did plight the faith of each State 
for their fulfilment; but in the Constitution there is 
nothing of that kind. The reason is, that, in the Con- 
stitution, it is the peojyie who speak, and not the States. 
The people ordain the Constitution, and therein address 
themselves to the States, and to the Legislatures of the 
States, in the language of injunction and prohibition. 
The Constitution utters its behests in the name and by 



C'JL. YII.] WEBSTER ON THE CONSTITUTION. ' 327 

authority of the people, and it does not exact from States 
any plighted public faith to maintain it. On the con- 
trary, it makes its own preservation depend on individual 
duty and individual obligation. Sir, the States cannot 
omit to appoint Senators and Electors. It is not a matter 
resting in State discretion or State pleasure. The Con- 
stitution has taken better care of its own preservation. It 
lays its hand on individual conscience and individual duty. 
It incapacitates any man to sit in the Legislature of a State, 
who shall not first have taken his solemn oath to support 
the Constitution of the United States. From the obliga- 
tion of this oath, no State power can discharge him. All 
the members of all the State Legislatures are as religiously 
bound to support the Constitution of the United States 
as they are to support their own State Constitution. 
Nay, sir, they are as solemnly sworn to suppoi't it as we 
ourselves are, who are members of Congress. 

" No member of a State Legislature can rcxuse to pro- 
ceed, at the proper time, to elect Senators to Congress, 
or to provide for the choice of Electors of President and 
Vice President, any more than the members of this Senate 
can refuse, Avhen the appointed day arrives, to meet the 
members of the other House, to count the votes for those 
officers, and ascertain wdio are chosen. In both cases, 
the duty binds, and with equal strength, the conscience 
of the individual member, and it is imposed on all by an 
oath in the same words. Let it then never be said, sir, 
that it is a matter of discretion with the States whether 
they will continue the Government, or break it up by 
refusing to appoint Senators and to elect Electors. They 
have no discretion in the matter. The members of their 
Legislatures cannot avoid doing either, so often as the 
lime arrives, without a direct violation of their duty and 
their oaths; such a violation as vrould break up any 
other Government. 



828 CONSTITUTIONAL ^lEW OF THE WAR. [Yol. I. 

^'Looking still further to the provisions of the Constitu- 
tion itself, in order to learn its true character, we find its 
great apparent purpose to be, to unite the people of all 
the States under one General Government, for certain 
definite objects, and, to the extent of this Union, to re- 
strain the separate authority of the States. Congress 
only can declare war; therefore, when one State is at 
war with a foreign nation, all must be at war. The 
President and the Senate only can makepeace; when 
peace is made for one State, therefore, it must be made 
for all. 

" Can any thing be conceived more preposterous, than 
that any State should have power to nullify the proceed- 
ings of the General Government respecting peace and 
war ? When war is declared by a law of Congress, can 
a single State nullify that law, and remain at peace ? 
And yet she may nullify that law as well as any other. 
If the President and Senate make peace, may one State, 
nevertheless, continue the war? And yet, if she can 
nullify a law, she may quite as well nullify a treaty. 

'' The truth is, Mr. President, and no ingenuity of argu- 
ment, no subtilty of distinction, can evade it, that, ns to 
certain purposes, the people of the United States arc one 
people. They are one in making war, and one in mak- 
ing peace ; they are one in regulating commerce, and one 
in laying duties of imposts. The very end and purpose 
of the Constitution was to make them one people iu 
these particulars ; and it has effectually accomplished its 
object. All this is apparent on the face of the Const* tu- 
tion itself I have already said, sir, that to obtain a 
power of direct legislation over the people, especially in 
regard to imposts, was always prominent as a reason for 
getting rid of the Confederation, and forming a new Con- 
stitution. Among innumerable proofs of this, before the 



Col. YII.] WEBSTER ON THE CONSTITUTION. 829 

assembling of the Convention, allow me to refer only to 
the report of the Committee of the old Congress, July, 
1785. 

" But, sir, let us go to the actual formation of the 
Constitution ; let us open the Journal of the Convention 
itself; and we shall see that the very first resolution 
which the Convention adopted, was, ' that A National 
Government ought to be established, consisting of a 
Supreme Legislature, Judiciary and Executive.' 

" This, itself, completely negatives all idea of League, 
and Compact, and Confederation. Terms could not be 
chosen more fit to express an intention to establish a 
National Government, and to banish forever all notion 
of a Compact between Sovereign States. 

"' This resolution was adopted on the 30th of May, 
1787. Afterwards, the style was altered; and, instead 
of being called a National Government, it was called the 
Government of the United States ; but the substance of 
this resolution was retained, and was at the head of that 
list of resolutions which was afterwards sent to the Com- 
mittee who were to frame the instrument. 

" It is true, there were gentlemen in the Convention, 
who were for retaining the Confederation, and amending 
its Articles ; but the majority was against this, and was 
for a National Government. Mr. Paterson's proposi- 
tions, which were for continuing the Articles of Con- 
federation, with additional powers, were submitted to the 
Convention, on the 15tli of June, and referred to the 
Committee of the Whole. The resolutions forming the 
basis of a National Government, which had once been 
agreed to m the Committee of the Whole, and reported, 
were recommitted to the same Committee, on the same 
day. The Convention, then, in Committee of the Whole, 
on the 19tli of June, had both these plans before theraj 



330 CONSTITUTIONAL TIEW OF THE WAR. [Vol. I. 

that is to say, the phin of a Confederacy, or Compact, 
between the States, and the phxn of a National Govern- 
ment. Both these phins were considered and debated, 
and the Committee reported,^' That they do not agree to 
the propositions offered by the Honorable Mr. Paterson, 
but that they again submit the resolutions formerly re- 
.-'^orted.' If, sir, any historical fiict in the world be plain 
and undeniable, it is that the Convention deliberated on 
the expediency of continuing the Confederation, with 
some amendments, and rejected that scheme, and adopt- 
ed the plan of a National Government, with a Legisla- 
ture, an Executive and a Judiciary of its own. They 
were asked to preserve the League ; they rejected the 
proposition. They were asked to continue the existing 
Compact between States ; they rejected it. They rejected 
Compact, League, and Confederation, and set themselves 
about framing the Constitution of a National Govern- 
ment ; and they accomplished what they undertook. 

" If men will open their eyes fairly, to the lights of 
history, it is impossible to bo deceived on this point. 
The great object was to supersede the Confederation, by 
a regular Government; because, under the Confedera- 
tion, Congress had power only to make requisitions on 
States ; and if States declined compliance, as they did, 
there was no remedy but war against such delinquent 
States. It would seem, from Mr. Jefferson's correspond- 
ence, in 1786 and 1787, that he was of opinion that 
even this remedy ought to be tried. ' There will be 
Ro money in the treasury,' said he, ' till the Confederacy 
shows its teeth;' and he suggests that a single frigate 
would soon levy, on the commerce of a delinquent State, 
the deficiency of its contribution. But this would be 
war ; and it was evident that a Confederacy could not 
long hold together, wdiicli should be at war with its 



Col. YII.] WEBSTER ON THE CONSTITUTION. 33X 

members. The Constitution was adopted to avoid this 
necessity. It was adopted tliat there might be a Govern- 
ment which should act directly on individuals. Avithout 
borrowing aid from the State Governments. This is as 
clear as light itself, on the very face of the provisions 
of the Constitution, and its whole history tends to the 
same conclusion. Its framers gave this very reason for 
their work in the most distinct terms. Allow me to 
quote but one or two proofs, out of hundreds. That 
State, so small in territorj^, but so distinguished for 
learning and talent, Connecticut, had sent to the General 
Convention, among other members, Samuel Johnston 
and Oliver Ellsworth. The Constitution having been 
framed, it was submitted to a Convention of the people 
of Connecticut for ratification on the part of that State ; 
and Mr. Johnston and Mr. Ellsworth were also members 
of this Convention. On the first day of the debates, 
being called on to to explain the reasons which led the 
Convention, at Philadelphia, to recommend such a Con- 
stitution, after showing the insufficiency of the existing 
Confederacy, inasmuch as it applied to States, as States, 
Mr. Johnston proceeded to say : — 

'' ' The Convention saw this imperfection in attempt- 
ing to legislate for States in their political capacity, that 
the coercion of law can be exercised by nothing but a 
military force. They have, therefore, gone upon entn^ely 
new ground. They have formed one new nation out 
of the individual States. The Constitution vests in the 
General Legislature a power to make laws in matters of 
National concern ; to appoint judges to decide upon 
these laws ; and to appoint officers to carry them into ex- 
ecution. This excludes the idea of an armed force. The 
power which is to enforce these laws is to be a legal 
power, vested in proper magistrates. The force which is 



332 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

to be employed is the energy of law ; and this force is 
to operate only upon individuals who fail in their duty 
to their country. This is the peculiar glory of the 
Constitution, that it depends upon the mild and equal 
Bnergy of the magistracy for the execution of the laws.' 

" In the further course of the debate, Mr. Ellsworth 
said, — 

^^'In Republics, it is a fundamental principle, that 
the majority govern, and that the minority comply 
with the general voice. How contrary, then, to Repub- 
lican principles, how humiliating, is our present situa- 
tion ! A single State can rise up, and put a veto upon 
the most important public measures. We have seen 
this actually take place; a single State has controlled 
the general voice of the Union ; a minority, a very 
small minority, has governed us. So far is this from 
being consistent with republican principles, that it is, in 
effect, the worst species of monarchy. 

" 'Hence we see how necessary for the Union is a 
coercive principle. No man pretends the contrary. We 
all see and feel this necessity. The only question is, 
shall it be a coercion of law, or a coercion of arms? 
There is no other possible alternative. Where will 
those who oppose a coercion of law come out ? Where 
will they end ? A necessary consequence of their prin- 
ciples is a war of the States one against another. I am 
for coercion by law ; that coercion which acts only upon 
delinquent individuals. This Constitution does not at- 
tempt to coerce Sovereign bodies. States, in their political 
ca])acity. No coercion is applicable to such bodies, but 
that of an armed force. If we should attempt to execute 
the laws of the Union by sending an armed force against 
a delinquent State, it would involve the good and bad, 
the innocent and guilty, in the same calamity. But this 



Col. YIL] WEBSTER ON THE COXSTITUTIOxV. 833 

legal coercion singles out the guilty individual and pun- 
*shes him for breaking the laws of the Union."-= 

" Indeed, sir, if we look to all contemporary history, 
to the numbers of the FcdernUd, to the debates in the 
Conventions, to the publications of friends and foes, they 
all agree, that a change had been made from a Confede- 
racy of States to a different system; they all agree, that 
the Convention had formed a Constitution for a National 
Government. With this result some were satisfied, and 
some were dissatisfied ; but all admitted that the thing 
had been done. In none of these varied productions and 
publications did any one intimate that the new Constitu- 
tion was but another Compact between States in their 
Sovereign capacities. I do not find such an opinion ad- 
vanced in a single instance. Everywh.ere, the people 
were told that the old Confederation was to be abandoned, 
and a new system to be tried ; tliat a proper Government 
was proposed, to be founded in the name of the people, 
and to have a regular organization of its own. Every- 
where, the people were told that it was to be a Govern- 
ment wdth direct powers to make laws over individuals, 
and to lay taxes and imposts without the consent of the 
V States. Ever}-\vhere, it Avas understood to be a populai 
Constitution. It came to the people for their adoption, 
and w^as to rest on the same deep foundation as the State 
Constitutions themselves. Its most distinguished advo- 
cates, who had been themselves members of the Conven- 
tion, declared that the very object of submitting the Con- 
stitution to the people was to preclude the possibility of 
its being regarded as a mere Compact. ' However gross a 
heresy,' &ay the writers of the Federalist, ' it may be to 
maintain that a party to a Comjyaci has a right to revoke 



See Ellsioortli, ante, p. 153, and Speech, ante, pp. 229, 230 



334 CONSTITUTIONAL TIEW OF THE WAR. [Vol. I. 

that Compact, the doctrine itself has had respectable 
advocates. The possibility of a question of this nature 
proves the necessity of laying the foundations of ^ur Na- 
tional Government deeper than in the mere sanction of 
delegated authority. The fabric of American Empire 
ou2:ht to rest on the solid basis of the coisrsENT of the 

PEOPLE.'* 

" Such is the language, sir, addressed to the people, 
while they yet had the Constitution under consideration. 
The powers conferred on the new Government were per- 
fectly Avell undei^tood to be conferred, not by any State, 
or the people of any State, but by the people of the 
United States. Virginia is more explicit, perhaps, in 
this particular, than any other State. Her Conven- 
tion assembled to ratify the Constitution, ^ in the name 
and behalf of the people of Virginia, declare and make 
known, that the powers granted under the Constitution, 
heing derived from the people of the United Statts, may be 
resumed by them whenever the same shall be perverted 
to their injury or oppression. 'f * * * 

" Is this language which describes the formation of a 
Compact between States? or language describing the 
grant of powers to a new Government, by the whole 
people of the United States ? 

" Among all the other ratifications, there is not one 
which speaks of the Constitution as a Compact betAveen 
States. Those of New Hampshire and Massachusetts 
express the transaction, in my opinion, with sufficient 
accuracy. They recognize tlie Divine goodness ^in 
affording the people of the United States an opportu- 
nity of entering into an explicit and solemn Com^^act 
with each other, hy assenting to and ratifying a new Con- 

* Ante, p. 155. f Ante, p. 269. 



Col. -V II.] COMMENTS ON WEBSTER 335 

stitution.' You will observe, sir, that it is the people, 
and not the States, who have entered into this Compact; 
and it is the people of all the United States. These Con- 
ventions, by this form of expression, meant merely to say, 
that the people of the United States had, by the blessing 
of Providence, enjoyed the opportunity of establishing a 
new Constitution, founded in the consent of the people. 
This consent of the people has been called, by European 
writers, the social Compact ; and, in conformity to this 
common mode of expression, these Conventions speak of 
that assent, on which the new Constitution was to rest, 
as an explicit and solemn Compact, not which the States 
had entered into with each other, but which the ]?eople 
of the United States had entered into. 

" Finally, sir, how can any man get over the words of 
the Constitution itself? '■ We, the people of the United 
States, do ordain and establish this Constitution.'* 
These words must cease to be a part of the Constititu 
tion, they must be obliterated from the parchment on 
which they are written, before any human ingenuity 
or human argument can remove the popular basis on 
which that Constitution rests, and turn the instrument 
into a mere Compact between Sovereign States !" .- 

Prof. Norton. Now, sir, I think this speech is a com- 
plete answer to all that you have said or can say on the 
subject. I adopt it because it is so compact, so solid and 
conclusive. What can you say in reply to it. What- 
ever 3^ou may think of Story as a historian or a states- 
man, I feel quite assured, from your estimation of Mr. 
Webster, of which you have given so many of the high- 
est proofs, that his authority will, at least, have some 

* Ante, p. 140 : " For the United States of America.^^ The first words 
arc not to be obliterated, neither are the last. All taken together show, 
that it was a Constitution for States and not the people m the aggregate. 



836 CONSTITUTIONAL YIEW OF THE WAR. [Vol. 1 

weight with you. If I mistake not, you alwaj^s regarded 
him as one of the ablest of our statesmen. His noble 
bust in the library there is a reminder of that estimate. 
Well do I remember how you and I strove to make him 
President in 1852. 

Mr. Stephens. Yes, I remember that contest well ; 
and it is true that I ever regarded Mr. Webster as one of 
the ablest of our statesmen : this the bust and the picture 
in the hall fully attest. In many respects I considered 
him the first man in this country, and, indeed, the first 
man of the age in wdiicli he lived. In mental power, in 
grasp of thought, and in that force and manner of ex- 
pression which constitute eloquence, he had no superior. 
Intellectually he was a man of huge proportions, and his 
patriotism was of the loftiest and purest character. Such 
was and is my estimation of him. I was exceedingly 
anxious to see him President, and what a President he 
would have made ! You did well, therefore, in selecting 
his argument on this subject. It is the embodiment of 
all that can be said upon your side of the question. It 
was the characteristic of Mr. AVebster to leave nothing 
unsaid, on his side of any subject he spoke on, that could 
be said to strengthen it, and all that could be said, he 
always said better than any body else. Hence, whether 
at the bar, on the hustings, or in the Senate, his speeches 
were always the best that were made on his side. It 
used to be a remark, often made by our Chief Justice 
Lumpkin, who was a man himself of wonderful genius, 
profound learning, and the first of orators in this State,, 
that Webster was always foremost amongst those with 
whom he acted on any question, and that even m books 
of selected pieces, whenever selections were made from 
Webster, those were the best in the book. This, I think, 
was not too great a eulogium upon his transcendent powers 



Cou VII.l CO-MMEXTS ON WEBSTER. 337 

and varied abilities. But it is not the lot of any Tnan to 
be perfect. I am far from believing Mr. Webster free 
from political errors. And this speech of his, which, by 
many (his biographer included, I believe), is considered 
the greatest of his life, you will allow me to say, contains 
more errors of this sort than any he ever made. His 
premises being erroneous, his conclusions must be of the 
the same character. The superstructure is grand. It is 
the work of a master genius. But the foundations are 
not solid. It was this speech, by the by, which gave 
him the appellation of tlie "Great Expounder of the Con- 
stitution," Avith the Consolidationists of that day. In ii, 
he did throw all the nnght of his Gigantic and Titan 
powers. But the subject was an overmatch for him :; 
the undertaking was too great for even him. Facts weiv 
too stubborn. His whole soul was in the subject, and he 
strove to establish what he wished rather than wdiat 
actually existed. His effort was to make facts bend to 
theory. This could not be done. This speech, I readib? 
admit, is the best and ablest that ever was made upon 
that side of the question. It stands as a monument of 
genius and eloquence. As such it may well take its 
place by the side of the great argument of Hume in 
defence of the Prerogatives of the Crown, claimed by the 
Stuarts, or of Sir Robert Filmer's famous productions in 
favor of the Divine Right of Kings, or Sir George Mc- 
Kenzie's " Jus liegmm." 

Much of the answer to this speech, you perceive, has 
been anticipated. For instance, what is said about "We, 
the people," etc., near the conclusion, has been sufficient- 
ly explained in our investigations. The broad assertion 
that all parties agreed that the Convention had formed a 
National Government and had not continued the Federal 
eystem, doubtless made a deep impression at the time 

22 



338 CONSTITUTIONAL YTEW OF THE WAR. [Vol. I. 

upon those not conversant with the history of the facts, 
but it can have no effect upon us v/ho have travelled so 
carefully through the records of those days. Equally 
unimpressively falls upon us the declaration that in 
" none of the productioiis and puljlications of those days 
did any one intimate that the new Constitution was but 
anuther Compact between States" We have seen that such 
was the opinion of Washington, Madison, Hamilton, 
Rufus King, Ellsworth, Morris, and Randolph ; that is, 
they all held that the Government established by it was 
Federal. This implies Compact ; and we have seen that 
it was the opinion of all th6 advocates of the Constitu- 
tion in everjj one of the Conventions of the States that 
ratified it, that the Federative character of the Union 
was preserved ! No advocate of the Constitution in any 
State admitted that the Federal System was abandoned 
in it, and no writer in the Federalist admitted it ! 

What is said in this speech about Mr. Paterson's 
proposition in the Convention that formed the Constitu- 
tion for continuing the Articles of Confederation, which 
was offered on the 15th of June and rejected on the 19tli 
of the same month, needs this explanation, and this only. 
Mr. Paterson's proposition was for coniinuing requisitions 
on the Slates as States, and for leaving all Legislative 
powers in the Congress composed of but one body as 
before. 

His proposition ignored the division of the Legislative 
body into tvv^o Houses, which was a leading object of a 
large majority of the States in the new organization. 
His proposition was rejected, not because it proposed to 
continue the Federal Si/stem, but because it did not pro- 
pose to continue it under a proper organization. That 
the Convention, by the rejection of his plan, did not 
intend to abandon the Federal system, has been conclu 



OoL VU.] COMMENTS ON W EBSTER. 339 

sively shown hy the vote on the 20th of Juno. That 
vote ordered the word " National" to be stricken out of 
Governor Randolph's plan and "the Government of the 
United States" to be inserted in lieu of it.* It is also 
worthy of note in this connection, that this phan of 
Mr. Paterson, w^hich Mr. Webster admits was nothing 
but a continuation of the Articles of Confederation, had 
in it these clauses : 

"6. Resolved, That the Legislative, Executive and Ju- 
dicial powers within the several States ought to be bound 
by oath to support the Articles of Union. 

" 7. Resolved, That all Acts of the United States, in 
Congress assembled, made by virtue and in pursuance of 
the powers hereby vested in them and by the Articles of 
Confederation, and all treaties made and ratified under 
the authority of the United States, shall be the supreme 
law of tlir respective States, as far as those acts or treaties 
siiall relate to the said States or their citizens ; and that 
the judiciaries of the several States shall be bound thereby 
in their decisions every thing in the respective laws of 
the individual States to the contrary notwithstanding."! 

This, you perceive, is the substance of the chause in 
the present Constitution which was afterwards offered by 
Mr. Martin, as has been seen, and upon which Mr. Wel> 
ster relies so much in his argument to show that a National 
Government and not a Federal one was instituted by the 
Constitution. This fact I wish you to bear in mind at 
this point in connection with what has been before said 
on that subject, as it clearly shows that no person in 
the Convention put such construction upon these words 
as Mr. Webster puts upon them. This clause was not 
thought by Mr. Paterson or Mr. Martin, or any body else 

* Journal of Convention, EllioVs Debates, vol. i, pp. 182, 183. 
t Journal of Concentlon, .^MioVs Debates, vol. i, p. 177. 



340 CONSTITUTIONAL VIEW OF THE WxVR. [Vol. I 

in the Convention, to be at all inconsistent with a con- 
tinuation of the former Articles of Union, which Mr. 
Webster admits was but a bare League or Compact be- 
tween States. We have seen that Mr. Hamilton and 
Mr. Madison, and Judge Chace, were of the same opinion. 
This much I say in passing. 

Now, in full answer to the main points in this truly 
great argument of Mr. Webster, following your example, 
I will read the reply to it by Mr. Calhoun. Great as 
Mr. Webster's was in my judgment, this speech of Mr. 
Calhoun was a complete refutation of its principles and 
a clear vindication of the correctness of his Resolutions 
that Mr. Webster made such powerful assault upon. 

Before taking it up, however, allow me to say, that I 
think Mr. Calhoun was greatly misunderstood in his day 
and time. He was generally regarded as an enemy to 
the Union. This was certainly a great misiake. He 
was, in my judgment, as ardent a friend of the Union as 
Mr. Webster was. Both were as true patriots as ever 
lived. They only differed as to the nature of the Union, 
and the principles upon which it should be maintained. 
Mr. Calhoun held that it could be maintained and per- 
petuated consistently with the preservation of Constitu- 
tional liberty only on the principle of the recognition of 
the ultimate Sovereign rights of the States. These doc- 
trines he advocated with an earnestness which showed 
the profound convictions of his judgment as well as his 
fearful apprehensions from the ascendancy of opposite 
principles. By many he was regarded as an alarmist. 
Sergeant S. Prentiss is reported to have said of him that 
"he claims our confidence by his very fears, and like 
the needle he trembles into place." Whether Prentiss 
ever made the remark or not, the fiorure is no less charac- 
teristic of the reported author than of him to whom it 



Col. VIL] COMMENTS ON WEBSTER. 341 

is said to have been applied. Amongst the many great 
men with whom he was associated, Mr. Calhoun was by 
I'iir the most philosophical statesman of them all. In- 
deed, with the exception of Mr. Jefferson, it may be ques- 
tioned if in this respect the United States has ever 
pn^kiced his superior. Government he considered a 
science, and in its study his whole soul was absorbed. 
Ills Treatise on the Constitution of the United States 
is the best that was ever penned upon that subject, and 
his Disquisition on Government generally, is one of the 
few books of this age, that will outlive the language in 
which it was written. He studied the controlliug prin- 
ciples of all systems, their organic laws, and the inevit- 
able results of their action. Webster, Clay, and Jack- 
son, all his rivals to some extent, w^ere much more prac- 
tical in their ideas as well as actions. He was regarded 
as too much of an abstractionist, dealing in incompre- 
hensible metaphysical distinctions. But no better reply 
to this charge and no better introduction to the speech 
I propose to read can be made, than the reply he made 
himself, to this charge, a few days before, in the Senate. 
"The Senator from Delaware" (Mr. Clayton), said 
Mr. Calhoun, " calls this metaphysical reasoning, which, 
he says, he cannot comprehend. If, by metaphysics, he 
means that scholastic refinement which makes distinc- 
tions without difference, no one can hold it in a more 
utter contempt than he (Mr. Calhoun) ; but if, on the con- 
trary, he means the power of analysis and combination — 
that power which reduces the most complex idea into its 
elements, which traces causes to their first principles, and 
by the power of generalization and combination, unites the 
whole into one harmonious system; then, so far from 
deserving contempt, it is the highest attribute of the 
human mind. It is the power which raises man above 



312 CONSTITQTIONAI ¥TEW OF TUE WAR. [Vol.1. 

the brute — which distinguishes his faculties from mere 
sao'acitv, which he holds in common with inferior ani- 
mals. It is this power wdiich has raised the astronomer, 
from IxMiig a mere gazer at the stars, to the high intel- 
lectual eminence of a Newton or a La Place ; and astron- 
omy itself, from a mere observation of insulated tacts, 
into that noble science which displays to our admiration 
the system of the universe. And shall this high power 
of tlie mind, Avhich has effected such wonders, when 
directed to the laws which control the material world, be 
forever prohibited, under a senseless cry of metaphysics, 
from being applied to the high purpose of political science 
and legislation. He held them to be subject to laws as 
fixed as matter itself, and to be as fit a subject for the 
application of the highest intellectual power. Denuncia- 
tion may, indeed, fall upon the philosophical inquirer 
into these first principles, as it did upon Galileo and 
Bacon, when they first unfolded the great discoveries 
which have immortalized their names ; but the time will 
come, wdien truth w^ill prevail in spite of prejudice and 
denunciation ; and when politics and legislation will be 
considered as much a science as astronomy and chem- 
istry."=!= 



2i'iles''s Becfister, vol. xliii, Suj).., p. 163. 





^::^ 




^:^ 



COLLOQUY VIII. 

CALHOUN ON THE CONSTITUTION— COMMENTS. 

Mr. Stephens. Following your exam}>le, I said I would 
read Mr. Calhoun's speech in reply to the main and lead- 
ing ideas of Mr. Webster in the speech made by him 
which you have just read. 

Here is that reply of Mr. Calhoun, or so much as bears 
upon the points at issue between them. It was delivered 
in the Senate, on the 26th of February, 1833.'^ 

^ :5: ^:: :!: * '^^• 

" The Senator from Massachusetts," said Mr. Calhoun, 
" in his argument against the Eesolutions, directed his 
attack almost exclusively against the first ; on the ground, 
I suppose, that it was the basis of the other two, and 
that, unless the first could be demolished, the others 
would follow of course. In this he was right. As plain 
and as simple as the facts contained in the first are, they 
cannot be admitted to be true without admitting the 
doctrines for which I, and the State I represent, contend. 
He commenced his attack with a verbal criticism on 
the Resolution, in the course of which he objected strongly 
to two words, 'Constitutional' and 'accede.' To the 
former, on the ground that the word, as used (Constitu- 
tional Compact), was obscure — that it conveyed no defi- 
nite meaning — and that Constitution was a noun-sub- 
stantive, and not an adjective. I regret that I have 

* Niles's Register^ vol. sliii, Siqi., p. 259. 

343 



344 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

exposed myself to the criticism of the Senator. I cer- 
tainly did not intend to use any expression of doubtful 
sense, and if I have done so, the Senator must attribute 
it to the poverty of my language, and not to design 1 
trust, however, that the Senator will excuse me, when he 
comes to hear my apology. In matters of criticism, 
authority is of the highest importance, and I have an 
authority of so high a character, in this case, for using 
the expression which he considers so obscure and so un- 
constitutional, as will justify me even in his eyeR. It is no 
less than the authority of the Senator himself — given on 
a solemn occasion (the discussion on Mr. Foote's Resolu- 
tion), and doubtless with great deliberation, after having 
duly weighed the force of the expression." 

[Here Mr. Calhoun read from Mr. Webster's speech, in 
the debate on the Foote Resolutions, in 1830.] 

" ' Nevertheless, I do not complain, nor would I coun- 
tenance any movement to alter this arrangement of 
representation. It is the original bargain — the Com- 
pjict — let it stand — let the advantage of it be fully 
enjoyed. The Union itself is too full of benefits to be 
hazarded in propositions for changing its original basis. 
I go for the Constitution, as it is, and for the Union, as 
it is. But I am resolved not to submit, in silence, to 
accusations, either against myself, individually, or against 
the North, wholly unfounded and unjust — accusations 
which impute to us a disposition to evade the Constitu- 
tional Compact, and to extend the power of the Govern- 
ment over the internal laws and domestic condition of 
the States.' 

" It will be seen by this extract," proceeded Mr. Cal- 
houn, " that the Senator not only used the phrase ' Con- 
stitutional Compact,' which he now so much condemns, 
but, what is still more important, he calls the Constitu- 



Col. TITT.] CALTIOUN ON THE CONSTITUTION, 845 

tion a Compact — a bargain — wliicli contains important 
admissions, having a direct and powerful bearing on the 
main issue, involved in the discussion, as will appear in 
the sequel. But, strong as his objection is to the word 
' Constitutional,' it is still stronger to the word ' accede,' 
which, he thinks, has been introduced into the Resolu- 
tion with some deep design, as I suppose, to entrap the 
Senate into an admission of the doctrine of State Eights. 
Here, again, I must shelter myself under authority. But 
I suspect the Senator, by a sort of instinct (for our in- 
stincts often strangely run before our knowledge), had 
a prescience, which would account for his aversion for 
the word, that this authority was no less than Thomas 
Jefferson himself, the great apostle of the doctrines of 
State Rights. The word was borrowed from him. It 
was taken from the Kentucky Resolution, as well as the 
substance of the resolution itself. But I trust I may 
neutralize whatever aversion the authorship of this word 
may have excited in the mind of the Senator, by the in- 
troduction of another authority — that of Washington, 
himself^who, in his speech to Congress, speaking of the 
admission of North Carolina into the Union, uses this 
very term, which was repeated by the Senate in their 
repl}^ Yet, in order to narrow the ground between the 
Senator and myself as much as possible, I will accommo- 
date myself to his strange antipathy against the two un- 
fortunate words, by striking them out of the Resolution, 
and substituting, in their place, those very words Avhich 
the Senator himself has designated as Constitutional 
phrases. In the place of that abhorred adjective ' Con- 
stitutional,' I will insert the very noun substantive • Con- 
stitution ;' and, in the place of the word ' accede,' I will 
insert the word ' ratify,' which he designates as the 
propei tern? to be used. 



316 COxVSTlTUTlONAL VIEW OF THE WAR. (Vol. I. 

"As proposed to be amended, the Resolution would 
read : — 

" ' Resolced, Tliat the people of the several States 
coinposing these United States are united as parties to a 
Compact, under the title of the Constitution of the 
United States, which the people of each State ratified as 
a separate and Sovereign community, each binding itself 
by its own particular ratification ; and that the Union of 
which the said Compact is the bond, is a Union heticeen 
the States ratifying the same.' 

" Where, sir, I ask, is that plain case of revolution ? 
Where that hiatus, as wide as the globe, between the 
premises and the conclusion, which tlie Senator pro- 
claimed w^ouid be apparent, if the Resolution was reduced 
into Constitutional language ? For my part, with my 
poor powers of conception, I cannot perceive the slightest 
difference between the Resolution, as first introduced, and 
as it is proposed to be amended in conformity to. the 
views of the Senator. And, instead of that hiatus 
between the premises and conclusion, which seems to 
startle the imagination of the Senator, I can perceive 
nothing but a continuous and solid surface, sufficient to 
sustain the magnificent superstructure of State Rights. 
Indeed, it seems to me that the Senator's vision is dis- 
torted by the medium through wdiich he views every 
thing connected with the subject ; and that the same dis- 
tortion wdiich has presented to his imagination this 
hiatus, as wide as the globe, where not even a fissure 
exists, also presented that beautiful and classical image 
of a strong man struggling in a bog, without the 
power of extricating himself, and incapable of being 
aided by any friendly hand ; while, instead of strug- 
c;lin2; in a bon;, he stands on the everlasting rock of 
trutii. 



Coi. YIII.l CALHOUN ON THE CONSTITUTION. 8-l7 

" Having now noticed the criticisms of the Senator, I 
shall proceed to meet and repel the main assault on the 
Resolution. He directed his attack against the strong 
point, the very horn of the citadel of State Rights. The 
Senator clearly perceived that, if the Constitution be a 
Compact, it was impossible to deny the assertions con- 
tained in the Resolutions, or to resist the consequences 
which I had drawn from them, and, accordingly, directed 
his whole fire against that point ; but, after so vast an 
expenditure of ammunition, not the slightest impres- 
sion, so far as I can perceive, has been made. But to 
drop the simile, after a careful examination of the notes 
which I took of what the Senator said, I am now at a loss 
to know whether, in the opinion of the Senator, our Con- 
stitution is a Compact or not, though the almost entire 
argument of the Senator was directed to that point. At 
one time he would seem to deny directly and positively 
that it was ii Compact, while at another he would appear, 
in language not less strong, to admit that it was 

" I have collated all that the Senator has said upon 
this point ; and, that what I have stated may not appear 
exaggerated, I will read his remarks in juxtaposition. He 
said that : 

"'The Constitution means a Government, not a Com 
pact.' ' Not a Constitutional Compact, but a Government.' 
' If Compact, it rests on plighted faith, and the mode of 
redress would be to declare the whole void.' 'States may 
secede, if a League or Compact.' 

" I thank the Senator for these admissions, which I 
mtend to use hereafter. 

" ' The States agreed that each should participate, in 
the Sovereignty of the other.' 

"Certainly, a very correct conception of the Constitu- 
tion ; but where did they make that agreement but by 



848 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

the Constituticii, and how could they agree but by Com- 
pact ? 

" ' The system, not a Compact between States hi then' 
Sovereign capacity, but a Government proper, founded on 
the adoption of the people, and creating individual rela- 
tions between itself and the citizens.' 

" This, the Senator laj's down as a leading, fundamen- 
tal principle to sustain his doctrine, and, I must say, with 
ntrange confusion and uncertainty of language ; not, cer- 
tainly, to be explained by any want of command of the 
most appropriate words on his part. 

" ' It does not call itself a Compact, but a Constitution. 
The Constitution rests on Compact, but it is no longer a 
Compact.' 

" I would ask, to what Compact does the Senator refer, 
as that on which the Constitution rests ? Before the 
adoption of the present Constitution, the States had 
formed but one Compact, and that was the old Confedera- 
tion ; and, certainly, the gentleman does not intend to 
assert that the present Constitution rests upon that. 
What, then, is his meaning ? What can it be, but that 
tlie Constitution itself is a Compact ? And how will his 
language read, when fairly interpreted, but that the Con- 
stitution was a Compact, but is no longer a Compact ? It 
had, by some means or another, changed its nature, or 
become defunct. 

" lie next states that — 

" 'A man is almost untrue to his country who calls the 
Constitution a Compact.' 

" I fear the Senator, in calling it a ' Compact, a bargain, 
has called down this heavy denunciation on his own 
head. He finally states that^ — 

" ' It is founded on Compact, but not a Compact.' ' It 
is the result of a Compact.' 



Col. VIIL] CALHOUN ON THE CONSTITUTION. 349 

" To what are we to attribute this strange confusion of 
words ? The Senator has a mind of high order, and 
perfectly trained to the most exact use of language. No 
man knows better the precise import of the words he 
uses. The difhculty is not in him, but in his subject. 
He who undertakes to prove that this Constitution is not 
a Compact, undertakes a task which, be his strength ever 
so great, must oppress him by its weight. Taking the 
whole of the argument of the Senator together, I would 
say that it is his impression that the Constitution is not 
a Compact, and will now proceed to consider the reason 
which he has assigned for this opinion. 

" He thinks there is an incompatijjility betw^een Consti- 
tution and Compact. To prove this, he adduces the 
words ' ordain and establish,' contained in the preamble 
of the Constitution. I confess I am not capable of per- 
ceiving in what manner these words are incompatible 
with the idea that the Constitution is a Compact. The 
Senator will admit that a single State may ordain a Con- 
stitution ; and where is the difficulty, where the in(;om- 
patibility, of two States concurring in ordaining and 
establishing a Constitution? As between the States 
themselves, the instrument would be a Compact ; but in 
reference to the Government, and those on whom it 
operates, it would be ordained and established — ordained 
and established by the joint authority of two, instead of 
the single authority of one. 

" The next argument which the Senator advances to 
show that the language of the Constitution is irreconcilable 
with the idea of its being a Compact, is taken from that 
portion of the instrument which imposes prohibitions on 
the authority of the States. He said that the language 
used, in imposing the prohibitions, is the language of a 
superior to an inferior ; and that, therefore, it was not 



850 CONSTITUTIONAL VIEW OF THE WAR [Vol. I. 

the language of a Compact, which implies the equality 
of the parties. As a proof, the Senator cited several 
clauses of the Constitution which provide that no State 
shall enter into treaties of alliance and confederation, 
lay imposts, etc., without the assent of Congress. If he 
had turned to the Articles of the old Confederation, 
which he acknowledges to have been a Compact, he 
would have found that those very prohibitory Articles ot 
the Constitution were borrowed from that instrument; 
that the language, which he now considers as implying 
superiority, was taken verbatim from it. If he had ex- 
tended his researches still further, he would have found 
that it is the habitual language used in treaties, when- 
ever a stipulation is made against the performance 
of any act. Among many instances, which I could 
cite, if it were necessary, I refer the Senator to the 
celebrated treaty negotiated b}^ Mr. Jay with Great 
Britain, in 1793, in which the very language used in the 
Constitution is employed. 

" To prove that the Constitution is not a Compact, the 
Senator next observes that it stipulates nothing, and 
asks, with an air of triumph, * Where are the evidences 
of the stipulations between the States ?' I must express 
my surprise at this interrogator}^, coming from so intel- 
ligent a source. Has the Senator never seen the ratih- 
cations of the Constitution by the several States ? Did 
he not cite them on this very occasion ? Do they 
contain no evidence of stipulations on the part of the 
States ? Nor is the assertion less strange that the 
Constitution contains no stipulations. 

" So far from regarding it in the light in which the 
Senator regards it, I consider the whole instrument but 
a mass of stipulations. What is that but a stipulation 
to which the Senator refers when lie states, in the courr ' 



Col. VITI.l CALHOUN OX THE CONSTITUTION. 351 

of his argument., that each State had agreed to partici- 
pate in the Sovereignty of the others, 

'^ But the principal argument on which the Senntor 
relied to show that the Constitution is not a Compact, 
rests on the provision, in that instrument, which declares 
that ' this Constitution, and laws made in pursuance 
thereof, and treaties made under their authority, are 
the supreme laws of the land.' He asked, with marked 
emphasis, 'Can a Compact he the supreme law of the 
land ?' His argument, in fact, as conclusively proves 
tliat treaties are not Compacts as that the Constitution 
is not a Compjict. I might rest the issue on this decisive 
answer; but, as I desire to leave not a shadow of doubt 
on this important point, I shall follow the gentleman in 
t]ie course of his reasoning. 

" He defines a Constitution to be a fundamental law. 
which organizes the Government, and points out the 
mode of its action. I will not object to the definition, 
though, in my opinion, a more appropriate one, or, at 
least, one better adapted to American ideas, could be 
given. My objection is not to the definition, but to the 
attempt to prove that the fundamental laws of a State 
cannot be a Compact, as the Senator seems to suppose. 
I hold the very reverse to be the case ; and that, accord- 
ing to the most approved writers on the subject of 
Government, these very fundamental laws which are 
now stated not only not to be Compacts, but inconsistent 
with the very idea of Compacts, are held invariably to 
be Compacts ; and, in that character, are distinguished 
from the ordinary laws of the country. I will cite a 
single authority, which is full and explicit on this point, 
from a writer of the highest repute. 

" Burlamaqui says, vol. ii, part 1, chap, i, sees. 35, 
r-)^ o/, 00 : 



o'52 CONSTITUTIONAL VIEW OF THE WAR. ] Vol. 1. 

" ' It entirely depends upon a free people to invest the 
Sovereigns, .whom tiiej place over their heads, with an 
authority either absolute or limited by certain laws. 
These regulations, by which the supreme authority is 
kept within bounds, are called the fundamental laws of 
the /State. The fundamental laws of a State, taken in 
their full extent, are not only the decrees by which the 
entire body of the nation determine the form of Govern- 
ment, and the manner of succeeding to the Crown, but 
are likewise covenants between the people and the per- 
son on whom they confer the Sovereignty, which regu- 
late the manner of governing, and by which the supreme 
authority is limited. 

" ' These regulations are called fundamental laws, be- 
cause they are the basis, as it were, and foundation of 
the State on which the structure of the Government is 
raised, and, because the people look upon these regula- 
tions as their principal strength and support. 

"'The name of laws, however, has been given to the;?3 
regulations in an improper and figurative sense, for, pro- 
perly speaking, they are real covenants. But as these 
covenants are obligatory between the contracting parties, 
they have the force of laws themselves.' 

"The same, vol. ii, part 2, ch. i, sees. 19 and 22, in part. 

" 'The whole body of the nation, in whom the supreme 
power originally resides, may regulate the Government 
by a fundamental law, in such manner, as to commit 
the exercise of the different parts of the supreme power 
to different persons or bodies, who may act independently 
of each other in regard to the rights committed to them, 
but still subordinate to the laws from which those rights 
are derived. 

"'And these fundamental laws are real covenants, or 
what the civilians call pacta cunventa, between the dilfei 



Col. VIIL] CALHOUN ON THE CONSTITUTION. 353 

ent orders of the republic, by which they stipuLate that 
each shall have a particular part of the Sovereignty, and 
that this shall establish the form of Government. It is 
evident that, by these means, each of the contracting 
parties acquires a right, not only of exercising the power 
granted to it, but also of preserving that original right.' 

"K reference to the Constitution of Great Britain, with 
wdiich we are better acquainted than with that of any other 
European Government, will show that that is a Compact. 
Magna Charta may certainly be reckoned among tho 
fundamental laws of that kingdom. Now, although it 
did not assume, originally, the form of a Compact, yet, 
before the breaking up of the meeting of the Barons 
which imposed it on King John, it was reduced into the 
form of a covenant, and duly signed by Robert Fitz- 
water and others, on the one part, and the King on the 
other. 

"But we have a more decisive proof that the Constitu- 
tion of England is a Compact, in the resolution of the 
Lords and Commons, in 1688, wdiicli declared : 

" 'King James the Second, having endeavored to sub- 
vert the Constitution of the kingdom, by breaking the 
original contract between the King and people, and 
having, by the advice of Jesuits and other wicked per- 
sons, violated the fundamental law, and withdrawn him- 
self out of the kingdom, hath abdicated the Government, 
and that the throne is thereby become vacant.' 

'' But why should I refer to wiiters upon the subject of 
Government, or inquire into the Constitution of foreign 
States, when there are such decisive proofs that our Con- 
stitution is a Compact? On this point the Senator is 
estopped. I borrow from the gentleman, and thank him 
for the word. His adopted State, which he so abl_y 
represents on this floor, and his native State, the States 

23 



354: CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

of Massachusetts and New Hampshire, both declared, in 
their ratification of the Constitution, that it was a Com- 
pact. The ratification of Massachusetts is in the follow- 
ing words :" 

[Here Mr. Calhoun called special attention to the rati- 
fication of the State of Massachusetts, in which the Con- 
stitution is spoken of as a '' Solemn Compact."]* 

^' The ratification of New Hampshire is taken from that 
of Massachusetts, and almost in the same words. But 
proof, if possible, still more decisive, may be found in the 
celebrated resolutions of Virginia on the alien and sedition 
law, in 1798,-]- and the responses of Massachusetts and 
the other States. These resolutions expressly assert that 
the Constitution is a Compact between the States, in the 
following language : 

" 'That this Assembly doth explicitly and peremptorily 
declare, that it views the powers of the Federal Gov- 
ernment, AS resulting from the Compact, to which the 
States are parties, as limited by the plain sense and 
intention of the instrument constituting that compact, 
as no farther valid than tiiey are authv^rized by the 
grants enumerated in that compact ; and that in case 
of a deliberate, palpable, and dangerous exercise of 
other powers not granted by the said compact, the 
States who are parties thereto have the right, and 
are in duty bound, to interpose for arresting the pro- 
gress of the evil, and for maintaining within their 
respective limits the authorities, rights, and liberties 
appertaining to them. 

" ' That the General Assembly doth also express its 
deep regret that a spirit has, in sundry instances, been 
manifested by the Federal Goveraraent to enlarge its 

* Ante, p. 233. t See Appendix E. 



Col. YIL] CALHOUN ON THE CONSTITUTION 855 

powers by forced constructions of the Constitutional 
Charter, which defines them; and that indications have 
appeared of a design to expound certain general phrases 
(which, having been copied from the very limited grant 
of powers in the former Articles of Confederation, were 
the less liable to be misconstrued), so as to destroy the 
meaning and effect of the particular enumeration which 
necessarily explains and limits the general phrases, and 

so as to CONSOLIDATE THE StATES, BY DEGREES, INTO ONE 
SOYEREIGNTT, THE OBVIOUS TENDENCY AND INEVITABLE RE- 
SULT OF WHICH WOULD BE, TO TRANSFORM THE PRESENT RE- 
PUBLICAN SYSTEM OF THE UnITED StATES INTO AN ABSOLUTE, 
OR, AT BEST, A MIXED MONARCHY !' 

" They were sent to the several States. We have the 
replies of Delaware, New York, Connecticut, New Hamp- 
shire, Vermont, and Massachusetts, not one of wdiicli con- 
tradicts this important assertion on the part of Virginia ; 
and, by their silence, they all acquiesce in its truth. The 
case is still stronger against Massachusetts, which ex- 
pressly recognizes the fact that the Constitution is a 
Compact." 

[Here Mr. Calhoun read from the answer of Massar 
chusetts, in which the Constitution is called a soleiim 
Cojn^act.'] 

" Now, I ask the Senator himself — I put it to his candor 
to say, if South Carolina be estopped on the subject of 
the protective s^-stem, because Mr. Burke and Mr. Smith 
proposed a moderate duty on hemp, or some other article, 
I know not what, nor do I care, with a view of encourag- 
ing its production (of which motion, I venture to say, 
not one individual in a hundred in the State ever heard), 
whether he and Massachusetts, after this clear, full, and 
solemn recognition that the Constitution is a Compact 
(both on his part and that of his State), be not forever 
estopped on this important point ? 



356 CONSTITUTIONAL YIEW OF THE WAR. [Vol.1 

" There remains one more of the Senator's arguments^ 
to prove that the Constitution is not a Compact, to be 
considered. He says it is not a Compact, because it is a 
Government ; which he defines to be an organized body, 
possessed of the will and power to execute its purposes 
by its own proper authority ; and which, he says, bears 
not the slightest resemblance to a Compact. But I would 
ask the Senator, Whoever considered a Government, when 
spoken of as the agent to execute the powers of the Con- 
stitution, and distinct from the Constitution itself, as a 
Compact ? In that light it would be a perfect absurdity. 
It is true that, in general and loose language, it is often 
said that the Government is a Compact, meaning the 
Constitution which created it, and vested it with author- 
ity to execute the powers contained in the instrument ; 
but when the. distinction is draAvn between the Constitu- 
tion and the Government, as the Senator has done, it would 
be as ridiculous to call the Government a Compact, as to 
call an individual, appointed to execute the provisions of 
a contract, a contract ; and not less so to suppose that 
there could be the slightest resemblance between j:hem. 
In connection with this point, the Senator, to prove that 
the Constitution is not a Compact, asserts that it is wholly- 
independent of the State, and pointedly declares that the 
States have not a right to touch a hair of its head; and 
this, with that provision in the Constitution that three- 
fourths of the States have a right to alter, change, amend, 
or even to abolish it, staring him in the face. 

" I have examined all of the arguments of the Senator 
intended to prove that the Constitution is not a Compact; 
and I trust I have shown, by the clearest demonstration, 
that his arguments are perfectly inconclusive, and that 
his assertion is against the clearest and most solemn evi- 
dence — evidence of record, and of such a character that 
it ought to close his lips forever. 



Col. VIIL] CALHOUN ON THE CONSTITUTION. 357 

" I turn now to consider the other, and, apparently, 
contradictory aspect in which the Senator presented this 
part of the subject : I mean that in which he states that 
the Government is founded in Compact, but is no longer 
a Compact. I have already remarked, that no other 
interpretation could be given to this assertion, except 
that the Constitution was once a Compact, but is no 
longer so. There was a vagueness and indistinctness in 
this part of the Senator's argument, which left me alto- 
gether uncertain as to its real meaning. If he meant, as 
I presume he did, that the Compact is an executed, and 
not an executory one — that its object was to create a 
Government, and to invest it with proper authority — and 
that, having executed this office, it had performed its 
functions, and, with it, had ceased to exist, then we have 
the extraordinary avowal that the Constitution is a dead 
letter — that it had ceased to have any binding effect, or 
any practical influence or operation. 

''It has, indeed, often been charged that the Constitu- 
tion has become a dead letter ; that it is continually vio- 
lated, and has lost all its control over the Government ; 
but no one has ever before been bold enough to advance 
a theory on the avowed basis that it was an executed, 
and, therefore, an extinct instrument. I will not seri- 
ously attempt to refute an argument, which, to me, 
appears so extravagant. I had thought that the Consti- 
tution was to endure forever ; and that, so far from its 
being an executed contract, it contained great trust 
powers for the benefit of those who created it, and of all 
future generations, — which never could be finally exe- 
cuted during the existence of the world, if our Govern- 
ment should so long endure. 

" I will now return to the first Resolution, to see how 
thQ issue stands between the Senator from Massachusetts 



858 CONSTITUTIONAL VIEW OF THE WAR. [Tol, ] 

and myself. It contains three propositions. First, that 
the Constitution is a Compact ; second, that it was formed 
by the States, constituting distinct communities; and, 
lastly, that it is a subsisting and binding Compact be- 
tween the States. How do these three propositions now 
stand? The first, I trust, has been satisfactorily esta- 
bhslied; the second, the Senator has admitted, faintly, 
indeed, but still he has admitted it to be true. This 
admission is something. It is so much gained by dis- 
cussion. Three years ago even this was a contested 
point. But I cannot say that I thank him for the 
admission; we owe it to the force of truth. The fact 
that these States were declared to be free and indepen- 
dent States at the time of their independence ; that they 
were acknowledged to be so by Great Britain in the 
treaty which terminated the war of the Revolution, and 
secured their independence; that they were recognized 
in the same character in the old Articles of the Confed- 
eration ; and, finally, that the present Constitution was 
formed by a Convention of the several States; after- 
wards submitted to them for their respective ratifications, 
and was ratified by them separately, each for itself, and 
each, by its own act, binding its citizens, — formed a 
body of facts too clear to be denied, and too strong to be 
resisted. 

'' It now remains to consider the third and last propo- 
sition contained in the Resolution, — that it is a binding 
and a subsisting Compact between the States. The 
Senator was not explicit on this point. I understood 
him, however, as asserting that, though formed by the 
Slates, the Constitution was not binding between the 
States as distinct communities, but between the American 
people in the aggregate ; who, in consequence of the 
adoption of the Constitution, according to the opinion 



OoL. VIIL] CALHOUN ON THE CONSTITUTION. 359 

of the Senator, became one people, at least to the extent 
of the delegated powers. This would, indeed, be a great 
change. All acknowledge that, previous to the adoption 
of the Constitution, the States constituted distinct and 
independent communities, in full possession of their 
Sovereignty ; and, surely, if the adoption of the Consti- 
tution was intended to effect the great and important 
change in their condition which the theory of the 
Senator supposes, some evidence of it ought to be found 
in the instrument itself It professes to be a careful and 
full enumeration of all the powers which the States 
delegated, and of every modification of their political 
condition. The Senator said that he looked to the 
Constitution in order to ascertain its real character; 
and, surely, he ought to look to the same instrument in 
order to ascertain what changes were, in flict, made in 
the political condition of the States and the country. 
But, with the exception of 'we, the people of the 
United States,' in the preamble, he has not pointed out 
a single indication in the Constitution, of the great 
change which as he conceives, has been effected in 
this respect. 

" Now, sir, I intend to prove, that the only argument 
on which the gentleman relies on this point, must utterly 
fail him. I do not intend to go into a critical examina- 
tion of the expression of the preamble to which I have 
referred. I do not deem it necessary. But if it were, 
it might be easily shown that it is at least as applicable 
to my view of the Constitution as to that of the Senator; 
and that the whole of his argument on this point rests 
on the ambiguity of the term thirteen United States; 
which may mean certain territorial limits, comprehend- 
ing within them the whole of the States and Territories 
of the Union. In this sense^ the people of the United 



360 CONSTITUTIONAL YIEW OF THE WAR. [Vol. I. 

States liiaj mean all the people living within these limits, 
.without reference to the States or Territories in which 
they may reside, or of which they may be citizens ; and 
it is in this sense only, that the expression gives the least 
countenance to the argument of the Senator. 

" But it may also mean, the States united, which inver- 
sion alone, without further explanation, removes the 
ambiguity to which T have referred. The expression in 
this sense, obviously means no more than to speak of the 
people of the several States in their united and confede- 
rated capacity; and, if it were requisite, it might be 
shown that it is only in this sense that the expression is 
used in the Constitution. But it is not necessary. A 
single argument will forever settle this point. Whatever 
may be the true meaning of the expression, it is not ap- 
plicable to the condition of the States as they exist under 
the Constitution, but as it was under the old Confedera- 
tion, before its adoption. The Constitution had not yet 
been adopted, and the States, in ordaining it, could only 
speak of themselves in the condition in which they then 
existed, and not in that in which they would exist under 
the Constitution. So that, if the argument of the Senator 
proves any thing, it proves, not (as he supposes) that 
the Constitution forms the American people into an 
aggregate mass of individuals, but that such was their 
political condition before its adoption, under the old Con- 
federation, directly contrary to his argument in the pre- 
vious part of this discussion. 

" But I intend not to leave this important point, the 
last refuge of those who advocate consolidation, even on 
this conclusive argument. I have shown that tlie Con- 
stitution affords not the least evidence of the mighty 
change of the political condition of the States and the 
country, which the Senator supposed it effected ; and I 



Col. VIIL] CALHOUN ON THE CONSTITUTION. 861 

intend now, by the most decisive proof, drawn from the 
instrument itself, to show that no such change was in- 
tended, and that the people of the States are united 
under it as States, and not as individuals. On this point 
there is a very inip'ortant part of the Constitution entirely 
and strangely overlooked by the Senator in this debate, 
as it is expressed in the first Resolution, which furnishes 
conclusive evidence not only that the Constitution is a 
Compact, but a subsisting Compact, binding between the 
States. I allude to the seventh Article, which provides 
that the ratification of the Conventions of nine States 
shall be sufficient for the establishment of this Constitu- 
tion ' hehveen the States so ratifying the same.' Yes, ' he- 
tween the States: These little words mean a volume. 
Compacts, not laws, bind hetweeii States; and it here 
binds, not as between individuals, but between the States : 
the States ratify hnj ; implying, as strong as language 
can make it, that the Constitution is what I have asserted 
it to be— a Compact, ratified by the States, and a sub- 
sisting Compact; binding the States ratifying it. 

" But, sir, I will not leave this point, all-important in 
establishing the true theory of our Government, on this 
argument alone, as demonstrative and conclusive as I 
hold it to be. Another, not much less powerful, but of a 
different character, may be drawn from the tenth amended 
Article, which provides that the powers not delegated to 
the United States by the Constitution, nor prohibited by 
it to the States, are reserved to the States respectively or 
to the people. The Article of Ratification, which I have 
just cited, hiforms us that the Constitution, which dele- 
gates powers, was ratified by the States, and is binding 
between them. This informs us to whom the powers are 
delegated, — a most important fact in determining the 
point immediately at issue between the Senator and my- 



362 CONSTITUTIONAL YIEW OF THE WAR. [Vol.1. 

self. According to his views, the Constitution created a 
union between individuals, if the solecism may be allowed, 
and that it formed, at least to the extent of the powers 
delegated, one people, and not a Federal Union of the 
States, as I contend ; or, to express the same idea differ- 
ently, that the delegation of pov/ers was to the American 
people in the aggregate (for it is only by such delegation 
that they could be constituted one people), and not to 
the Ualted States, — directly contrary to the Article just 
cited, which declares that the powers are delegated to 
the United States. And here it is worthy of notice, that 
the Senator cannot shelter himself under the ambiguous 
phrase, Uo the people of the United States,' under 
which he would certainly have taken refuge, had the 
Constitution so expressed it ; but fortunately for the cause 
of truth and the great principles of Constitutional liberty 
for which I am contending, ' people,' is omitted : thus 
making the delegation of power clear and unequivocal to 
the United States, as distinct political communities, and 
conclusively proving that all the powers delegated are 
reciprocally delegated by the States to each other, as dis- 
tinct political communities. 

" So much for the delegated powders. Now, as all admit, 
and as it is expressly provided for in the Constitution, the 
reserved powers are reserved ^ to the States respect ivelij, or 
to the people.' None will pretend that, as far as they are 
concerned, we are one people, though the argument to 
prove it, however absurd, would be far more plausible 
that that which goes to show that we are one people to 
the extent of the delegated powers. This reservation 
' to the people' might, in the hands of subtle and trained 
logicians, be a peg to hang a doubt upon ; and had the 
expression ' to the people' been connected, as fortunately 
it is not, with the dele<2:ated instead of the reserved 



L, ,VX1.J_L t^l^v. V^V.XVj^. 



Col. YIII.j CALHOUN ON THE CONSTITUTION. 863 

powers, we should not have heard of this in the present 
discussion. 

" I have now estabUshed, I hope, beyond the power of 
controversy, every allegation contained in the first Reso- 
lution — that the Constitution is a Compact formed by the 
people of the several States, as distinct political commu- 
nities, and subsisting and binding between the States in 
the same character ; which brings me to the considerar 
tion of the consequences which may be fairly deduced, in 
reference to the character of our political system, from 
these established facts. 

" The first and most important is, they conclusively 
establish that ours is a Federal system— a system of 
States arranged in a Federal Union, each retaining its 
distinct existence and Sovereignty. Ours has every at- 
tribute which belongs to a Federative System. It is 
founded on Compact; it is formed by Sovereign commu- 
nities, and is binding between them in their Sovereign 
capacity. I might appeal, in confirmation of this asser- 
tion, to all elementary writers on the subject of Govern- 
ment, but will content myself with citing one only. 
Burlamaqui, quoted with approbation by Judge Tucker, 
in his Commentary on Blackstone, himself a high au- 
thority, says :" 

[Here Mr. Calhoun quotes from Tucker's Blackstone 

as follows] : 

" ' Political bodies, whether great or small, if they are 
constituted by a people formerly independent, and under , 
no civil subjection, or by those who justly claim indepen- 
dence from any civil power they were formerly subject 
to, have the civil supremacy in themselves, and are in a 
State of equal right and liberty with respect to all other 
States, whether great or small. No regard is to be had 
in this matter to names, whether the body-politic be 



364 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I 

called a kingdom, an empire, a principality, a dukedom, a 
country, a republic, or free town. K if can exercise 
justly all the essential parts of civil power within itself, 
independently of any other person or body-politic, — and 
no other has any right to rescind or annul its acts,— it 
has the civil supremacy, how small soever its territory 
may be, or the number of its people, and has all the 
rights of an independent State.* 

u i This independence of States, and their being dis- 
tinct political bodies from each other, is not obstructed by 
any alliance or confederacies wliatsoever, about exer- 
cising jointly any parts of the supreme powers, such as 
those of peace and war, in league offensive and defensive. 
Two States, notwithstanding such treaties, are separate 
bodies, and independent.^ 

*" These are, then, only deemed politically united, 
when some one person or council is constituted with a 
right to exercise some essential powers for both, and to 
hinder either from exercising them separately. If any 
person or council is empowered to exercise all these 
essential powers for both, they are then one State :J such 
is the State of England and Scotland, since the Act of 
Union made at the beginning of the eighteenth century, 
whereby the two kingdoms were incorporated into one, 
all parts of the supreme power of both kingdoms being 
thenceforward united, and vested in the three Estates of 
the realm of Great Britain ; by which entire coalition, 
though both kingdoms retain their ancient laws and 
usages in many respects, they are as effectually unite(3 
and incorporated, as the several petty kingdoms, which 
composed the heptarchy, were before that period. 

" 'But when only a portion of the supreme civil powe* 

* YatUl, B. I, c. i, ? 4. f Valid, B. I, c. i, \ la 

X Vattel, B. I, c. i, ^ 10. 



Col. TIIL] CALHOUN ON THE CONSTITUTION. ijgs 

is vested in one^ person or council for both, such as that 
of peace and war, or of deciding controversies between 
different States, or their subjects, while each, within 
itself, exercises other parts of the supreme power, inde- 
pendently of all the others — in this case they are called 
Systems of States, which Burlamaqui defines to be an 
assemblage of perfect Governments, strictly united by 
some common bond, so that they seem to make but a 
single body with respect to those affairs which interest 
them in connnon, though each preserves its Sovereignty, 
full and entire, independently of all others. And in this 
case, he adds, the Confederate States engage to each 
other only to exercise, with common consent, certain 
j)arts of the Sovereignty, especially that which relates to 
their mutual defence against foreign enemies. But each 
of the Confederates retains an entire liberty of exercising;, 
as it thinks proper, those parts of the Sovereignty which 
are not mentioned in the treaty of Union, as parts that 
ought to be exercised in connnon.* And of this nature 
is the American Confederacy, in which each State has 
resigned the exercise of certain parts of the supreme civil 
power which they possessed before (except in common 
with the other States included in the Confederacy), 
reserving to themselves all their former powers, which 
are not delegated to the United States by the common 
bond of Union. 

"*A visible distinction, and not less important than 
obvious, occurs to our observation, in comparing these 
different kinds of Union. The kingdoms of England 
and Scotland are united into one kingdom ; and the two 
contracting States, by such an incorporate Union, are, in 
the opinion of Judge Blackstone, totally annihilated, 

* Burlaw aqui^ B. ii, Part ii, c. i, I 40-44. 



366 CONSTITUTIONAL VIEW OF THE WAR. [Yoh.l. 

witliout any power of revival ; and a third arises from 
tlieir conjunction, in which all the rights of Sovereignty, 
and particularly that of Legislation, are vested. From 
whence he expresses a doubt, whether any infringements 
of the fundamental and essential conditions of the Union 
would, of itself, dissolve the Union of those kingdoms; 
though he readily admits that, in the case of a Federate 
alliance, such an infringement would certainly rescind 
the Compact between the Confederated States. In the 
United States of America, on the contrary, each State 
retains its own antecedent form of Government ; its own 
laws, subject to the alteration and control of its own 
Legislature only ; its own executive officers and council 
of State ; its own courts of Judicature, its own judges, 
its own magistrates, civil officers, and officers of the 
militia; and, in short, its own civil State, or body 
politic, in every respect whatsoever. And by the ex- 
press declaration of the 12tli article of the amendments 
to the Constitution, the powers not delegated to the 
LTnited States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or 
to the people. In Great Britain, a new civil State is 
created by the annihilation of two antecedent civil 
States ; in the American States, a general Federal coun- 
cil and administration is provided, for the joint exercise 
of such of their several powers as can be more conve- 
niently exercised in that mode than any other, leaving 
their civil State unaltered ; and all the other powers, 
which the States antecedently possessed, to be exercised 
by them respectively, as if no Union or connection were 
established between them. 

" ' The ancient Achaia seems to have been a Confede- 
racy founded upon a similar plan; each of those little 
States had its distinct possessions, territories, and bouuda- 



Col. YIIT.] CALHOUN ON THE CONSTITUTION. 3tJ7 

ries ; each had its Senate or Assembly, its magistrates 
and judges ; and every State sent Deputies to the Gene- 
ral Convention, and had equal weight in all determinar 
tions. And most of the neighboring States which, moved 
by fear of danger, acceded to this Confederacy, had reason 
to felicitate themselves. 

'' ' These Confederacies, by wdiich several States are 
united together by a perpetual league of alliance,* are 
chiefly founded upon this circumstance, that each par- 
ticular people choose to remain their own masters, and 
yet are not strong enough to make head against a com- 
mon enemy. The purport of such an agreement usually 
is, that they shall not exercise some part of the Sover- 
eignty, there specified, without the general consent of 
each other. For the leagues, to which these systems of 
States owe their rise, seem distinguished from others (so 
frequent among different States), chiefly by this con- 
sideration, that, in the latter, each confederate people 
determine themselves, by their own judgment, to cer- 
tain mutual performances ; yet so that, in all otlier re- 
spects, they design not, in the least, to make the exercise 
of that part of the Sovereignty, Avhence these perform- 
ances proceed, dependent on the consent of their allies, 
or to retrench any thing from their full and unlimited 
power of governing their own States. Thus, we see that 
ordinary treaties propose, for the most part, as their aim, 
only some particular advantage of the States thus trans- 
acting — their interests happening, at present, to fall in 
with each other — but do not produce any lasting union 
as to the chief management of affairs. Such was the 
treaty of alliance between America and France, in the 
year 1778, by which, among other articles, it was agreed 
that neither of the two parties should conclude either 
truce or peace with Great Britain, without the formal 



368 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

consent of the other, first obtained, and whereby they 
mutually engaged not to lay down their arms until the 
independence of the United States should be formally or 
tacitly assured by the treaty or treaties which should 
terminate the war. Whereas, in these confederacies of 
which we are now sjDcaking, the contrary is observable, 
they being established with this design, that the several 
States shall forever link their safety, one with another ; 
and, in order to their mutual defence, shall engage them- 
selves not to exercise certain parts of their Sovereign 
power, otJierwise than by a common agreement and 
approbation. Such were the stipulations, among others, 
contained in the Articles of Confederation and perpetual 
Union between American States, by which it was agreed 
that no State should, without the consent of the United 
States, in Congress assembled, send any embassy to, or 
receive any embassy from, or enter into any conference, 
agreement, alliance or treaty with, any king, prince or 
State ; nor keep up any vessels of war, or body of forces, 
in time of jDcace ; nor engage in any war, without the 
consent of the United States in Congress assembled, un- 
less actually invaded ; nor grant commissions to any 
ships of war, or letters of marque and reprisal, except 
after a declaration of war by the United States in Congress 
assembled, with several others ; yet each State, respeci- 
ively, retains its Sovereignty, freedom and independence, 
and every power, jurisdiction and right which is not ex- 
pressly delegated to the United States in Congress assem- 
bled. The promises made in these two cases, here com- 
pared, run very differently ; in the former, thus : I will 
join you, in this particular war, as a confederate, and the 
manner of our attacking the enemy shall be concerted 
by our common advice ; nor will we desist from war, till 
the particular end thereof, the establishment of the inde- 



Col. YIII.l CALHOUN ON THE CONSTITUTION. bo9 

pendeiice of the United States, be obtained. In the Lat- 
ter, thus : None of us who have entered into this alli- 
imce, will make use of our right as to the affairs of w^ar 
and peace, except by the general consent of tiie whole 
confederacy. We observed before that these Unions 
submit only some certain parts of the Sovereignty to 
mutual direction ; for it seems hardly possible that the 
afiairs of different States should have so close a con- 
nection, as that all and each of them should look on it as 
their interest to have no part of the chief Government 
exercised without the general concurrence. The most 
convenient method, therefore, seems to be, that the par- 
ticular States reserve to themselves all those branches of 
the supreme authority, the management of which can 
have little or no influence in the affairs of the rest.' " 

" If we compare our present system," continued Mr. 
Calhoun, "with the old Confederation, which all acknow- 
ledge to have been Federal in its character, we shall find 
that it possesses all the attributes which belong to that 
form of Government as fully and completely as that did. 
In fact, in this particular, there is but a single difference, 
and that not essential, as regards the point immediately 
under consideration, though very important in other 
respects. The Confederation was the act of the State 
Governments, and formed a union of Governments. The 
present Constitution is the act of the States themselves, 
or, v/hich is the same thing, of the people of the several 
States, and forms a union of them as Sovereign communi- 
ties. The States, previous to the adoption of the Consti- 
tution, ^vere as separate and distinct political bodies as the 
Governments which represent them, and there is nothing 
in the nature of things to prevent them from uniting 
under a Compact, in a Federal Union, without being 
blended in one mass, any more than uniting the Goveru- 

24 



370 CONSTITUTIONAL VIEW OF THE WAR. [Vol, L 

merits themselves, in like manner, without merging them 
in a single Government. To illustrate what I have stated 
by reference to ordinary transactions, the Confederation 
was a contract between agents — the present Constitution 
a contract between the principals themselves; or, to 
take a more analogous case, one is a League made by 
ambassadors ; the other, a League made by Sovereigns — 
the latter no more tending to unite the parties into a 
single Sovereignty than the former. The only differ- 
ence is in the solemnity of the act and the force of the 
obligation. ''' * 

" We will now proceed to consider some of the conclu- 
siinis which necessarily follow from the facts and jDositions 
already established. They enable us to decide a question 
of vital importance under our system : Where does SoA^e- 
reignty reside ? If I have succeeded in establishing the 
fact that ours is a Federal S3'stem, as I conceive I con- 
clusively have, that fact of itself determines the question 
which I have proposed. It is of the very essence of such 
a system, that the Sovereignty is in the parts, and not in 
the whole ; or, to use the language of Mr. Palgrave, ' The 
parts are the units in such a system, and the whole the 
multiple ; and not the whole the unit and the parts the 
fractions.' Ours, then, is a Government of twenty-four 
Sovereignties, united by a Constitutional Compact, for the 
purpose of exercising certain powers through a common 
Government as their joint agent, and not a Union of 
the twenty-four Sovereignties into one, which, according 
to the language of the Virginia Resolutions, already cited, 
would form a Consolidation. And here I must express 
my surprise that the Senator from Virginia should avow 
himself the advocate of these very Resolutions, Avhen he 
distinctly maintains the idea of a Union of the States in 
one Sovereignty, which is expressly condemned by these 
Resolutions as the essence of a Consolidated Government. 



Cot. VIII.] CALHOUN OX THE CONSTITUTION. 371 

'^Another consequence is equally clear, that, whatever 
modifications were made in the condition of the States 
under the present Constitution, thej extended only to 
the exercise of their pow^ers by Compact, and not to the 
Sovereignty itself, and are such as Sovereigns are compe- 
tent to make : it being a conceded point, that it is competent 
to them to stipulate to exercise their powers in a particular 
manner, or to abstain altogether from their exercise, or 
to delegate them to agents, without in any degree impair- 
ing Sovereignty itself. The plain state of the facts, as 
regards our Government, is, that these States have agreed 
by Compact to exercise their Sovereign powers jointly, 
as already stated ; and that, for this purpose, they have 
ratified the Compact in their Sovereign capacity, thereby 
making it the Constitution of each State, in nowise dis- 
tinguished from their own separate Constitutions, but in 
the super-added obligation of Compact — of faith mutually 
pledged to each other. In this Compact, they have stipu- 
lated, among other things, that it may be amended by 
three fourths of the States: that is, they have conceded 
to each other by Compact the right to add new powers 
or to subtract old, by the consent of that proportion of 
the States, without requiring, as otherwise would have 
been the case, the consent of all : a modification no more 
Inconsistent, as has been supposed, wdth their Sovereigntj^, 
than any other contained in the Compact. In fact, the 
provision to which I allude furnishes strong evidence that 
the Sovereignty is, as I contend, in the States severally, 
as the amendments are effected, not by any one three 
fourths, but by any three fourths of the States, indicating 
that the Sovereignty is in each of the States. 

"'If these views be correct, it follows, as a matter of 
sourse, that the allegiance of the people is to their several 
States, and that treason consists in resistance to the joint 



872 CONSTITUTIONAL YIEW OF THE WAR. [Vot 1 

autliority of the States united, not, as has been nbsurdly 
contended, in resistance to the Government of the United 
States, which, by the provision of the Constitution, has 
only the right of punishing. * * 

''Having now said vvhat I intended in relation to my 
first Resolution, both in i-eply to the Senator from Massa- 
chusetts, and in vindication of its correctness, I will now 
proceed to consider the conclusions draw^n from it in the 
second Resolution — that the General Government is not 
the exclusive and final judge of the extent of the powers 
delegated to it, but that the States, as parties to the Com- 
pact, have a right to judge, in the last resort, of the in- 
fractions of the Compact, and of the mode and measure 
of redress. 

" It can scarcely l^e necessary, before so enlightened a 
body, to premise that our system comprehends two dis- 
tinct Governments — the General and State Governments, 
which, properly considered, form but one — the former 
representing the joint authority of the States in their 
Confederate capacity, and the latter that of each State 
separately. I have premised this fact simply with a view 
of presenting distinctly the answer to the argument offered 
by the Senator from Massachusetts to prove that the 
General Government has a final and exclusive right to 
judge, not only of delegated powers, but also of those re- 
served +o the States. That gentleman relies for his main 
argun^ent on the assertion that a Government, which he 
defines to be an organized body, endowed with both will, 
and power, and authority in proprio vigore to execute its 
purpose, has a right inherently to judge of its powers. It 
is not my intention to comment upon the definition of 
the Senator, though it would not be difficult to show that 
his ideas of Government are not very American. My 
objec^ is to deal with the conclusion, and not the defini- 



ooL. VIIL] CALHOUN ON THE CONSTITUTION. 373 

tion. Admit then, that the Government has the liuht 
of judging of its powers, for which he contends. How. 
thien, will he withhold, upon his own principle, the right 
of judging from the State Governments, which he has 
•ittributed to the General Government? If it belongs to 
one, (ni his principle, it belongs to both; and if to both, 
v> lien they differ, the veto, so abhorred by the Senator, is 
the necessary result : as neither, if the right be possessed 
by both, can control the other. 

" The Senator felt the force of this argument, and, in 
order to sustain his main position, he fell back on that 
clause of the Constitution which provides that 'this Con- 
stitution, and the laws made in pursuance thereof, shall 
be the supreme law of the land.' 

'^ This is admitted ; no one has ever denied that the 
Constitution, and the laws made in pursuance of it, are 
of Paramount authorit3^ But it is equally undeniable 
that laws not made in pursuance are not only not of 
Paramount authority, but are of no authority whatever, 
being of themselves null and void ; which presents the 
question, who are to judge whether the laws be or be 
not pursuant to the Constitution ?'•' and thus the diffi- 
culty, instead of being taken away, is removed but one 
step further back. This the Senator also felt, and has 
attempted to overcome, by setting up, on the part of 
Congress and the judiciary, the final and exclusive right 
of judging, both for the Federal Government and the 
States, as to the extent of their respective powers. 
Tiiat I may do full justice to the gentleman, I will give 
his doctrine in his own words. He states, — 

'' ' That there is a supreme law, composed of the 
Constitution, the laws passed in pursuance of it, and the 

* This, according to Martin's proposition was just what was refused 
to the Genera' Government. See a?tie, p. 40. 



374 CONSTITUTIONAL VIEW OF THE WAR. [Vol. L 

treaties ; but in cases coming before Congress, not as- 
suming the shape of cases in hiw and equit}^, so as to be 
subjects of judicial discussion, Congress must interpi'et 
the Constituiiun so often as it has occasion to pass hiws; 
and in cases capable of assuming a judicial shape, tJie 
Supreme Court must be the final interpreter.' 

" Now, passing over this vague and loose phraseology, 
I would ask the Senator upon what principle can he 
concede this extensive power to the Legislative and 
Judicial departments, and withhold it entirely from the 
Executive? If one has the right it cannot be with- 
held from the other. I would also ask him on what 
priiiciple — if the departments of the General Govern- 
ment are to possess the right of judging, finally and 
conclusively, of their respective powers — on what prin- 
ciple can the same right be withheld from the State 
Governments, which, as well as the General Govern- 
ment, properly considered, are but departments of the 
same general system, and form together, properly speak- 
ing, but one Government ? This was a favorite idea oi 
Mr. Macon, for whose wisdom 1 iiave a respect increas- 
ing with my experience, and who I have frequently 
heard say, that most of the misconceptions and errors 
in relation to our system, originated in forgetting that 
they were but parts of the same system. I would fur- 
ther tell the Senator, that, if this right be withheld 
from the State Governments ; if this restraining infiuence, 
by which the General Government is confined to its 
proper sphere, be withdrawn, then that department of 
the Government from which he has withheld the ridit 

a 

of judging of its own powers (the Executive), will, so far 
from being excluded, become the sole interpreter of the 
powers of the Government. It is the armed interpreter, 
with powers to execute its own construction, and with- 



UoL. VIIT.l CALHOUN ON THE CONSTITUTION. 375 

out the aid of whicli the construction of the otlier 
departments will be impotent. 

• "But I contend that the States have a far clearer 
fight to the sole construction of their powers than any 
of the departments of the Federal Government can have. 
This power is expressly reserved, as I have stated on 
another occasion, not only against the several depart- 
ments of the General Government, but against the United 
States themselves. I will not repeat the arguments 
wdiich I then offered on this point, and which remain un- 
answered, but I must be permitted to offer strong addi- 
tional proof of the views then taken, and which, if I am 
not mistaken, are conclusive on this point. It is drawn 
from the ratification of the Constitution by Virginia, and 
is in the following words : 

" ' We, the Delegates of the people of Virginia, duly 
elected in pursuance of a recommendation from the Gen- 
eral Assembly, and now met in Convention, having full}^ 
and freely investigated and discussed the proceedings of 
the Federal Convention, and being prepared, as wx'll as 
the most mature deliberation hath enabled us, to decide 
thereon, do, in the name and in behalf of the people of 
Virginia, declare and make known that the powers 
granted under the Constitution, being derived from the 
people of the United States, may be resumed by them, 
whensoever the same shall be joerverted to their injury or 
oppression, and that every power not granted thereby 
remains wdth them, and at their will ; that, therefore, no 
right, of any denomination, can be cancelled, abridged, re- 
strained, or modified, by the Congress, by the Senate or 
House of Representatives, acting in any capacity, by the 
President, or any department or officer of the* United 
States, except in those instances in which power is given 
by the Constitution for those purposes ; and that, among 



376 CONSTITUTIONAL VIEW OF THE WAR. [Yoi,. ]. 

other essential rights, the liberty of conscience, and of 
the press, cannot be cancelled, abridged, restrained, or 
modified by any authority of the United States. With 
these impressions, with a solemn appeal to the Searcher 
of all hearts for the purity of our intentions, and under 
the conviction that whatsoever imperfections may exist 
in the Constitution ought rather to be examined in the 
mode prescribed therein, than to bring the Union in dan- 
ger by a delay, with the hope of obtaining amendments 
previous to the ratifications, — We, the said Delegates, in 
the name and in the behalf of the people of Virginia, do, by 
these presents, assent to and ratify the Constitution re- 
commended, on the 17th day of September, 1787, by the 
Federal Convention for the Government of the United 
States, hereby announcing to all those whom it may con- 
cern, that the said Constitution is binding upon the said 
people, according to an authentic copy hereto annexed, in 
the words following,' etc. 

" It thus appears that this sagacious State (I fear, 
however, that her sagacity is not so sharp-sighted now 
as formerlj^) ratified the Constitution, with an explana- 
tion as to her reserved powers ; that they were powers 
isuljiject to her own will, and reserved against every de- 
partment of the General Government — Legislative, Ex- 
ecutive, and Judicial — as if she had a prophetic know- 
ledge of the attempts now made to impair and destroy 
them : which explanation can be considered in no other 
light than as containing a condition on which she rati- 
fied, and, in fact, making part of the Constitution of tho 
United States — extending as well to the other States as 
herself I am no lawyer, and it may appear to be pre- 
sumption in me to lay down the rule of law which 
governs in such cases, in a controversy with so distin- 
guish *^d an advocate as the Senator from Massachusetts. 



Col. YTIL] CALHOUN ON THE CONSTITUTION. 877 

But I shall venture to lay it down as a rule in such 
cases, which I have no fear that the gentleman will con- 
tradict, that, in case of a contract between several part- 
ners, if the entrance of one on condition be admitted, 
the condition enures to the benefit of all the partners. 
But I do not rest the argument simply upon this view 
Virginia proposed the tenth amended article, the one in 
question, and her ratification must be at least received 
as the highest evidence of its true meaning and interpre- 
tation, 

" If these views be correct — and I do not see how they 
can be resisted — the rights of the States to judge of the 
extent of their reserved powers stands on the most solid 
Ibundation, and is good against every department of the 
General Government; and the judiciary is as much ex- 
cluded from an interference with the reserved powers as 
the Legislative or Executive departments. To establish 
the opposite, the Senator relies upon the authority of 
Mr. Madison, in the Federalist, to prove that it was 
intended to invest the Court with the power in question. 
In reply, I will meet Mr. Madison with his own opinion, 
given on a most solemn occasion, and backed by the 
sagacious Commonwealth of Virginia. The opinion to 
which I allude will be found in the celebrated Report of 
1799, of which Mr. Madison was the author. It says : 

" ' But it is objected, that the Judicial authority is 
to be regarded as the sole expositor of the Constitution in 
the last resort; and it may be asked for what reason the 
declaration by the General Assembly, supposing it to be 
theoretically true, could be required at the present day, 
and in so solemn a manner. 

" ' On this objection it might be observed, first, that 
there may be instances of usurped power, which the 
forms of the Constitution would never draw within 



878 CONSTITUTIONAL VIEW OF THE WAR [Vol. 1. 

the control of tlie Judicial department; secondly, that, if the 
decision of the judiciary be raised above the authority of 
the Sovereign parties to the Constitution, the decisions of 
the other department's, not carried by the forms of the Con- 
stitution belbre the judiciary, must be equally authorita- 
tive and final as the decisions of this department. But 
the proper answer to this objection is, that the Resolution 
of the General Assembly relates to those great and extra- 
ordinary cases in which all the forms of the Constitution 
may prove ineffectual against infractions dangerous to 
the essential rights of the parties to it. The Resplution 
supposes that dangerous powers, not delegated, may not 
only be usurped and executed by the other departments, 
but that the Judicial department, also, may exercise or 
sanction dangerous powers beyond the grant of the Con- 
stitution ; and, consequently, that the ultimate right of 
the parties to the Constitution to judge whether the Com- 
pact was dangerously violated, must extend to violations 
by one delegated authority as well as by another ; by the 
judiciary as well as by the executive or the Legislature.'"'"* 
" But why should I waste words in reply to these or 
any other authorities, when it has been so clearly estab- 
lished that the rights of the States are reserved against 
each and every department of the Government, and no 
authority in opposition can possibly shake a position so 
well established ? Nor do I think it necessary to repeat 
the argument which I offered when the bill was under 
discussion, to show that the clause in the Constitution 
which provides that the judicial power shall extend to 
all cases in law or equity arising under this Constitution, 
and to the laws and treaties made under its authority, 
has no bearing on the point in controversy; and that 
oven the boasted power of the Supreme Court to decide 



See Api^endix E. 



Col. VIIT.] CALHOUN ON THE CONSTITUTION. 379 

a Inw to be unconstitutional, so far from being derived 
from this or any oilier portion of the Constitution, results 
from the necessity of the case — where two rules of une- 
qual authority come in conflict — and is a power belong- 
ing to all courts, superior and inferior, State and General, 
Domestic, and Foreign. 

" I have now, I trust, shown satisfictorily, that the/e 
is no provision in the Constitution to authorize the Gene- 
ral Government, through any of its departments, to con- 
trol the action of a State within the sphere of its reserved 
powers; and that, of course, according to the principle 
laid down by the Senator from Massachusetts himself, the 
Government of the States, as well as the General Govern- 
ment, has the right to determine clie extent of their re- 
spective powers, without the right on the part of either 
to control the other. The necessary result is the veto, to 
which he so much objects ; and to get clear of which, he 
informed us, was the object for which the present Consti- 
tution Avas formed. I know not whence he has derived 
his information, but my impression is very different, as 
to the immediate motives which led to the formation of 
that instrument. I have always understood that the 
principle was, to give to Congress the power to regulate 
commerce, to lay impost duties, and to raise a revenue for 
the payment of the public debt and the expenses of the 
Government; and to subject the action of the citizens, in- 
dividually, to the operation of the laws, as a substitute for 
force. If the object had been to get clear of the veto of 
th(^ States, as the Senator states, the Convention, cer- 
tainly, performed their work in a most bungling manner. 
Tliere was, unquestionably, a large party in that body, 
headed l)y men of distinguished talents and influence, 
who commenced early and worked earnestly to the hist, 
to deprive the States — not directly, for that would have 



380 COXSTITUTIOXAL VIEW OF THE WAR. [Vol. I. 

been too bold an attempt, but indirectly — of the veto. 
The good sense of the Convention, however put down 
every effort, however disguised and perseveringly made. 
I do not deem it necessary to give, from the journals, the 
history of these various and unsuccessful attempts — 
thou!2;h it would afford a very instructive lesson. It is 
sufficient to say that it was attempted, by proposing to 
give to Congress power to annul the acts of the States 
which they might deem inconsistent with the Constitu- 
tion; to give to the President the power of appohiting 
the Governors of the States, wdth a view of vetoing State 
laws through his authority; and, finally, to give the 
judiciary the power to decide controversies between the 
States and the General Government; all of which failed — 
fortunately for the liberty of the countrj^ — utterly and 
entirely foiled ; and in this failure we have the strongest 
evidence, that it was not the intention of the Convention 
to deprive the States of the veto power. Had the attempt 
to deprive them of this power been directly made, and 
failed, every one would have seen and felt, that it would 
furnish conclusive evidence in favor of its existence. Nov/, 
I would ask, what possible difference can it make in what 
form this attempt was made ? Whether by attempting to 
confer on the General Government a power incompatible 
with the exercise of the veto on the part of the States, or 
by attempting directly to deprive them of the right to 
exercise it ? We have thus direct and strong proof that, 
in the opinion of the Convention, the States, unless 
deprived of it, possess the veto power — or, what is 
another name for the same thing, the right of Nullifia- 
tion. I know that there is a diversity of opinion among 
the friends of State Rights in regard to this power, which 
I regret, as I cannot but consider it as a power essential 
to the protection of the minor and local interests of the 



Col. Till.] CALHOUN ON THE CONSTITUTION 381 

community, and the liberty and the Union of the country. 
It is the very shield of State Rii^hts, and the only power 
by which that system of injustice against which we have 
contended for more than thirteeen years can be arrested : 
a system of hostile Legislation — of plundering by law, 
which must necessarily lead to a conflict ol arms, if not 
prevented. 

" But I rest the right of a State to judge of the extent 
of its reserved powers, in the last resort, on higher 
grounds — that the Constitution is a Compact, to which 
the States are parties in their Sovereign capacity ; and 
that, as in all other cases of Compact between parties 
having no common umpire, each has a right to judge for 
itself. To the truth of this proposition, the Senator from 
Massachusetts has himself as-sented, if the Constitution 
itself be a Compact — and that it is, I have shown, I trust, 
beyond the possibility of a doubt. Having established 
this point, I now claim, as I stated I would do, in the 
course of the discussion, the admissions of the Senator, 
and, among them, the right of Secession and Nullification, 
which he conceded would necessarily follow if the Con- 
stitution be, indeed, a Compact. 

" I have now replied to the arguments of the Senator 
from Massachusetts so far as they directly apply to the 
Resolutions, and will, in conclusion, notice some of his 
general and detached remarks. To prove that ours is a 
consolidated Government, and that there is an immediate 
connection between the Government and the citizen, he 
relies on the fact that the laws act directly on individuals. 
That such is the case I will not deny; but I am very for 
from conceding the point that it affords the decisive proof, 
or even any proof at all, of the position which the 
Senator wishes to maintain. I hold it to be perfectly 
within the competency of two or more States to subject 



882 CONSTITUTIONAL VIEW OF THE WAR. [Voi I. 

their citizens, in certain cases, to the direct action of each 
other, without surrendering or impairing their Sovereign 
ty. I recollect, while I was a member of Mr. Monroe's 
cabinet, a proposition was submitted by the British 
Government to permit a mutual right of search and 
seizure, on the part of each Government, of the citizens 
of the other, on board of vessels engaged in the slave- 
trade, and to establish a joint tribunal for their trial and 
punishment. The proposition was declined, not because 
it would impair the Sovereignty of either, but on the 
ground of general expediency, and because it would be 
incompatible with the provisions of the Constitution 
which establish the judicial power, and which provisions 
require the judges to be appointed by the President and 
Senate. If I am not mistaken, propositions of the same 
kind were made and acceded to by some of the Conti- 
nental powers. 

" With the same view the Senator cited the suability 
of the States as evidence of their want of Sovereignty ; 
at which I must express my surprise, coming from the 
quarter it does. No one knows better than the Senator 
that it is perfectly within the competency of a Sovereign 
State to permit itself to be sued. We have on the 
Statute-book a standing law, under which the United 
States may be sued in certain land cases. If the pro- 
vision in the Constitution on this point proves any thing, 
it proves, by the extreme jealousy Avith which the right 
of suing a State is permitted, the very reverse of that 
for which the Senator contends. 

" Among other objections to the views of the Constitu- 
tion for which I contend, it is said that they are novel. 
I hold this to be a great mistake. The novelty is not on 
my side, but on that of the Senator from Massachusetts. 
The doctrine of Consolidation wliich he maintains is of 



Ooi. VIII.] CALIIOUX ON THE CONSTITUTION. 383 

recent growth. It is not the doctrine of Hamilton, 
Ames, or any of the distinguished Federalists of tlie 
p(;riod, all of whom strenuously maintained the Federa- 
tive character of the Constitution, though they were 
accused of supporting a system of policy which would 
necessarily lead to Consolidation. The first disclosure of 
that doctrine was in the case of M'Culloch ; in which the 
Supreme Court held the doctrine, though wrapped up in 
language somewhat indistinct and ambiguous. The next, 
and more open avowal, was by the Senator of Massachu- 
setts himself, about three years ago, in the debate on 
Foote's resolution. The first official annunciation of the 
doctrine was in the recent proclamation of the President, 
of which the bill that has recently passed this body is 
the bitter fruit. 

" It is further objected by the Senator from Massachu- 
setts, and others, against the doctrine of State Rights, as 
maintained in this debate, that, if it should prevail, the 
peace of the country would be destroyed. But ^vhat if 
it should not prevail ? Would there be peace ? Yes, the 
peace of despotism : that peace which is enforced by the 
bayonet and the sword ; the peace of death, where all 
the vital functions of liberty have ceased. It is this 
peace which the doctrine of St^ate Sovereignty may dis- 
turb by that conflict, which, in every tree State, if 
properly organized, necessarily exists between liberty and 
power; but which, if restrained within proper limits, 
gi^'cs a salutary exercise to our moral and intellectual 
faculties. In the case of Carolina, which has caused all 
this discussion, who does not see. if the effusion of blood 
be prevented, that the excitement, the agitation, and the 
inquiry which it has caused, will be followed by the 
most beneficial consequences? The country had sunk 
into avarice, intrigue, and electioneering^ — frm■r^ yihTr-h 



384. CONSTITUTIONAL VIEW OF THE WAR, rVoi>. 1 

nothing but some such event could rouse it, or restore 
those honest and patriotic feelings which had almost dis- 
appeared under their baneful influence. What Govern- 
ment has ever attained power and distinction without 
such conflicts ? Look at the degraded state of all those 
nations where they have been put down by the iron arm 
of the Government. 

" I, for my part, have no fear of any dangerous 
conflict, under the fullest acknowledgment of State Sove- 
reignty : the very fact that the States may interpose 
will produce moderation and justice. The General 
Government will abstain from the exercise of any power 
in which they may suppose three fourths of the States 
will not sustain them; while, on the other hand, the 
States will not interpose but on the conviction that they 
will be supported by one fourth of their co-States. Mode- 
ration and justice will produce confidence, attachment 
and patriotism ; and these, in turn, will ofler most 
powerful barriers against the excess of conflicts between 
the States and the General Government. 

" But we are told that, should the doctrine prevail, 
the present system would be as bad, if not worse, than 
the old Confederation. I regard the assertion only ao 
evidence of that extravagance of declaration in which, 
from excitement of feeling, we so often indulge. Admit 
the power, and still the present system would be as far 
removed from the weakness of the old Confederation as 
it would be from the lawless and despotic violence of 
consolidation. So far from being the same, the differ- 
ence between the Con-federation and the present Consti- 
tution would still be most strongly marked. If there 
were no other distinction, the fact that the former re- 
quired the concurrence of the States to execute its acts, 
and the latter, the act of a State to arrest them, would 



C0L.VII1.] CALHOUN ON THE CONSTITUTION. 885 

make a distinction as broad as the ocean. In the 
former, the vis inertice of our nature is in opposition to 
the action of the system. Not to act Avas to defeat. In 
the hitter the same principle is on the opposite side — 
action is required to defeat. He who understands hu- 
man nature will see, in this fact alone, the difference 
between a feeble and illy-contrived Confederation, and 
the restrained energy of a Federal systein. Of the 
same character is the objection that the doctrine will 
be the source of w^eakness. If we look to mere or- 
ganization and physical power as the only source of 
strength, without taking into the estimate the ope- 
ration of moral causes, such would appear to be the 
fact; but if we take into the estimate the latter, we 
shall find that those Governments have the greatest 
strength in which power has been most efficiently 
checked. The Government of Rome furnishes a memo- 
rable example. There, two independent and distinct 
powers existed — the people acting by Tribes, in which 
the Plebeians prevailed, and by Centuries, in which 
the Patricians ruled. The Tribunes were the ap- 
pointed representatives of the one power, and the Se- 
nate of the other ; each possessed of the authority oi 
checking and overruling one another, not as depart- 
ments of the Government, as supposed by the Senator 
from Massachussetts, but as independent powers, — as 
much so as the State and General Governments. A 
shallow observer would perceive, in such an organization, 
nothing but the perpetual source of anarchy, discord, 
and weakness ; and yet experience has proved that it 
was tlie most powerful Government that ever existed ; 
and reason teaches that this power was derived from the 
very circumstances which hasty reflection would consider 
the cause of weakness. I will venture an assertion, 

25 



386 CONSTITUTIONAL VIEW OF THE WAR. [Vol I. 

wliicb may be considered extravagant, but in wbicb bis- 
tory will fully bear me out, tliat we have no knowledge of 
any people where the power of arresting the improper 
acts of the Government, or what may be called the nega- 
tive power of Government, was too strong, — except Po- 
land, where every freeman possessed a veto. But even 
there, although it existed in so extravagant a form, it 
was the source of the highest and most lofty attachment 
to liberty, and the most heroic courage : qualities that 
more than once saved Europe from the domination of the 
crescent and cimeter. It is worthy of remark, that the 
fate of Poland is not to be attributed so much to the 
excess of this negative power of itself, as to the fiicility 
which it afforded to foreign influence in controlling its 
political movements. 

" I am not surprised that, with the idea of a perfect 
Government which the Senator from Massachusetts has 
formed — a Government of an absolute majority, unchecked 
and unrestrained, operating through a representative 
body — he should be so much shocked with what he is 
pleased to call the absurdity of the State 'veto. But let 
me tell him that his scheme of a perfect Government, as 
beautiful as he conceives it to be, though often tried, 
has invariably failed, — has always run, whenever tried, 
through the same uniform process of faction, corruption, 
anarchy, and despotism. He considers the representative 
prhiciple as the great modern improvement in legislation, 
and of itself sufficient to secure liberty. I cannot regard 
it in the light in which he does. Instead of modern, 
it is of remote origin, and has existed, in greater or less per- 
fection, in every free State, from the remotest antiquity. 
Nor do I consider it as of itself sufficient to secure libert}^, 
though I regard it as one of the indispensable means — 
the means of securing the people against the tyranny and 



Col. YIII.] CALHOUN ON THE CONSTITUTION. 387 

oppression of their riders. To secure liberty, another 
means is still necessary — the means of securing the diifer- 
ent portions of society against the injustice and oppressions 
of each other, which can only be effected by veto, inter- 
position, or N unification, or by whatever name the re- 
straining or negative power of Government may be 
called." 

This is quite enough of Mr. Calhoun's reply. I have 
read all of it that bears directly upon the main points in 
Issue between them. On these points never was a man 
more completely answered than Mr. Webster was. The 
argument is a crusher, an extinguisher, an annihilator ! 

Prof. Norton. Where is Mr. Webster's rejoinder? 

Mr. Stepuens. He made none. He followed with a 
few remarks o\\\j, disavowing any personal unkind feel- 
ings to Mr. Calhoun, explaining how he had used the 
term "Constitutional Compact," in 1830; and attempting 
to parry one or two of the blows, but he never made any 
regular set reply or rejoinder. He never came back at 
his opponent at all on the real questions at issue. Mr. 
Calhoun stood master of the arena. This speech of his 
was not answered then, it has not been answered since, 
and ill my judgment never will be, or can be answered 
while truth has its legitimate influence, and reason con- 
trols the judgment of men ! 

The power and force of this speech must have been felt 
by Mr. Webster himself He was a man of too much 
reason and logic not to have felt it. This opinion I am 
the more inclined to from the flict, that he not only did 
not attempt a general reply to it at the time, but from 
the further fact, that in after life he certainly, to say the 
least of it, greatly modified the opinions held by him in 
that debate. 

Prof. Norton. To what do you refer ? 



388 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1 

Mr. Stephens. I refer specially to a speech made by liim 
before the Supreme Court of the United States, in 1839, 
and to his speech at Capon Springs, in Virginia, in 1851, 
as well as some other matters. But, if it is agreeable to 
all, we will suspend the investigation for the present, 
take our evening's walk, and resume the subject to-morrow. 
Reading aloud is much more exhausting than talking, 
even with the same tone of voice. 



COLLOQUY IX. 

SUBJECT CONTINUED-WEBSTER'S SPEECH BEFOTIE THE SUPKEME COUKT- 
niS LETTER TO BARING BROTnERS & CO-HIS CAPON SPRINGS SPEECH- 
THE SUPREME COURT ON STATE SOVEREIGNTY-INTERNATIONAL COMITY- 
DIFFERENCE BETWEEN THE UNION OF THE STATES AND THE UNION OF 
ENGLAND AND SCOTLAND-EXPOSITION OF THE CONSTITUTION BY THE 
SENATE IN 1838-CALnOUN'S PRINCIPLES OF 1833 SUSTAINED BY TWO 
THIRDS OF THE STATES IN 1838-EXPOSITION OP THE CONSTITUTION BY 
THE SENATE IN 1860— JEFFERSON DAVIS. 

Prof. Norton. Well, Mr. Stephens, we are all ready 
to resume the sul^ject we were last upon. That was the 
modification of Mr. Webster's opinions upon the issue be- 
tween him and Mr. Calhoun in their great debate which 
we have been reviewing. 

Mr. Stephens. Yes, I have just looked up the argu- 
ment of Mr. Webster, before the Supreme Court of the 
United States, to which I referred. I will first call your 
attention to that, and then some other expressions of 
opinion by him, bearing on the same subject. The case 
the Court had under consideration was the The Bank of 
Augusta vs. Earle. In this case the nature of the General 
Government and the nature of the State Governments m 
their relations to each other, came up for adjudication. 
This was in January, 1839, six years after the discussion 
with Mr. Calhoun in the Senate. Here is what he then 

said 1'^ 

" But it is argued, that though this law of comity 
exists as between independent Nations, it does notj^xist 

*13 reici-s'i UqiorLs^ p. 559. 

389 



390 CONSTITUTIOXAI. VIEW OF THE WAR. [Vol. I. 

between the States of this Union. That argument ap- 
pears to have been the foundation of the judgment in the 
Court below. 

" In respect to this haw of comity, it is said, States arc 
not Nations ; they have no National Sovereignty ; a sort 
of residuum of Sovereignty is all that remains to them. 
The National Sovereignty, it is said, is conferred on this 
Government, and part of the municipal Sovereignty. The 
rest of the municipal Sovereignty belongs to the States. 
Notwithstanding the respect which I entertain for the 
learned Judge, who presided in that Court, I cannot 
follow in the train of his argument. I can make no diar 
gram, such as this, of the partition of National character 
between the State and General Governments. I cannot 
map it out, and say, so far is National, and so far muni- 
cipal ; and here is the exact line where the one begins 
and the other ends. AYe have no second La Place, and 
we never shall have, with his Mechanique Politique, 
able to define and describe the orbit of each sphere in 
our political system with such exact mathematical pre- 
cision. There is no such thing as arranging these Gov- 
ernments of ours by the laws of gravitation, so that they 
will be sure to go on forever without impinging. These 
institutions are practical, admirable, glorious, blessed 
creations. Still they were, when created, experimental 
institutions; and if the Convention which framed the 
Constitution of the United States had set down in it cer- 
tain general definitions of power, such as have been 
alleged in the argument of this case, and stopped there, 
I verily believe that in the course of the fifty years which 
have since elapsed, this Government would have never 
gone into operation. 

•'Suppose that this Constitution had said, in terms after 
the lanojuaere of the Court below — all National Sove- 



iQCtl^J^V 



Col. IX.] INTERNATIONAL COMITY. 391 

reignt}' shall belong to the United States; all municipal 
Sovereignty to the several States. I will say, that how- 
ever clear, however distinct, such a definition may ap- 
pear to those who use it, the employment of it, in the 
Constitution, could only have led to utter confusion and 
uncertainty. / am not j)re-pared to say that the States 
have no National Sovereignty. The laws of some of the 
States — Maryland and Virginia, for instance — provide 
punishment for treason. The power thus exercised is, 
certainly, not municipal. Virginia has a law of alienage ; 
that is, a power exercised against a foreign nation. Doea 
not the question necessarily arise, when a ])ower is exer- 
cised concerning an alien enemy — enemy to whom ? The 
law of escheat, which exists in all the States, is also the 
exercise of a great Sovereign poiver. 

^' The term ' Sovereignty' does not occur in the Con- 
stitution at all. The Constitution treats States as States, 
and the United States as the United States ; and, by a 
careful enumeration, declares all the poivers that are 
granted to the United States, and all the rest are reserved 
to the States. If we pursue, to the extreme point, the 
powers granted, and the pov.'ers reserved, the powers of 
the General and State Governments will be found, it is 
to be feared, impinging, and in conflict. Our hope is, 
that the prudence and patriotism of the States, and the 
wisdom of this Government, will prevent that catas- 
trophe. For myself, I will pursue the advice of the 
Court in Deveaux's case ; I will avoid nice metaphysical 
subtilties,' and all useless theories; I will keep my feet 
out of the traps of general definition ; I will keej^ my 
feet out of all traps ; I will keep to things as they are, 
and go no further to inquire what they might be, if they 
were not what they are. The States of this Unicyii, as 
States, are suhject to all the voluntary and customary laws 
of Nations.'^ 



392 CONSTITUTIONAL VIEW OF THE WAR. [Yol. 1. 

[Mr. Webster here referred to, and quoted a passage 
from Vattel (page 61), which, he said, clearly showed, 
that States connected together as are the States of this 
Union, must be considered as much component parts of 
the law of Nations as any others.]'^ 

" If, for the decision of any question, the proper rule is 
to be found in the law of Nations, that law adheres to 
the subject. It follows the subject through, no matter 
into what place, high or low. You cannot escape the 
law of Njttions in a case where it is applicable. The air 
of every judicature is full of it. It pervades the Courts 
of law of the highest character, and the Court of pie 
poudre ; aye, even the constable's Court. It is part of 
the universal law. It may share the glorious eulogy 
pronounced by Hooker upon law itself: that there is 
nothing so high as to be beyond the reach of its power, 
nothing so low as to be beneath its care. If any ques- 
tion be within the influence of the law of Nations, the 
law of Nations is there. If the law of comity does not 
exist between the States of this Union, how can it exist 
between a State and the subjects of any foreign Sove- 
reignty ?" 

In this carefully prepared argument Mr. Webster sig- 
nificantly says: that in the Constitution nothing is said 
about " Sovereignty." This is all important. He ad- 
mitted, in the debate with Mr. Calhoun, that the States 
were Sovereign before the Constitution was adopted. In 
this argument he holds the position that the powers dele- 
gated to the United States in the Constitutioii are specific 
and limited, and that all not delegated are reserved to 
the States. He states distinctly, that the Constitution 
treats the States as States. If the States, then, were 



See VatteJ, here quoted, ante, p. 170. 



Col. IX.] SUPREME COURT ON STATE RIGHTS. 398 

Sovereign anterior to the Constitution, and Sovereignty 
was not delegated or parted with hy them in it, as it 
could not have heen, as the Constitution is silent upon 
the subject, then of course it is still reserved to the States. 
If the Sovereignty of the States was not delegated or 
parted with in the Constitution, was it not of necessity 
retained by them ? He clearly so argues. This is the 
inevitable conclusion from the rules of inexorable logic. 
The decision of the Supreme Court in this case was on 
the line of his argument, and fully sustains his position. 
They say, 

" It has, however, been supposed that the rules of 
comity between foreign Nations do not apply to the States 
of this Union ; that they extend to one another no other 
rights than those which are given by the Constitution of 
the United States ; and that the Courts of the General 
Government are not at liberty to presume, in the absence 
of all legislation on the subject, that a State has adopted 
the comity of Nations towards the other States, as a part 
of its jurisprudence; or that it acknowledges any rights, 
but those which are secured by the Constitution of the 
United States. The Court think otherwise. The inti- 
mate Union of these States, as members of the same great 
political family ; the deep and vital interests which bind 
them so closely together ; should lead us, in the absence 
of proof to the contrary, to presume a greater degree of 
comity, and friendship, and kindness towards one another, 
than we should be authorized to presume between foreign 
Nations. And when (as without doubt must occasionally 
happen) the interest or policy of any State requires it to 
restrict the rule, it has but to declare its will, and the 
legal presumption is at once at an end. But until this is 
done, upon what grounds could this Court refuse to ad- 
minister the law of international comity between these 



394 CONSTITUTIONAL TIEW OF THE WAR. [Yol. I. 

States ? Theij are Sovereign States ; and the history of 
the past, and the events which are daily occurring, furnish 
the strongest evidence that ih^y have adopted towards 
each other the hiws of comity in their fullest extent. * * 

'' But it cannot be necessary to pursue the argument 
further. We think it is well settled, that by the law of 
comity among Nations, a corporation created by one Sovc- 
reujnty is permitted to make contracts in another, and to 
sue in its Courts ; and tliat the same laiv of comity prevails 
among tlie several Sovereignties of this Unions 

I read this decision of the Court, not only to show 
that the Court sustained this view presented by Mr. 
Webster, in 1839, which was a great modification of the 
view expressed by him in 1833, that you have read, 
but to show that it has been decided, solemnly adju- 
dicated by the highest Judicial tribunal in this country, 
that Sovereignty is still retained by the several States 
of the Union under the Constitution. 

Judge Bynum. The Court in that case barely held 
that the law of international comity obtained between 
the States of our Union, as the same doctrine is held by 
the British Courts between Scotland and England, and 
yet no one there holds that Scotland is separately 
Sovereign from England, or that Scotland could dissolve 
the Compact of their Union. 

Mr. Stephens. The cases are totally different. There 
is no analogy between them. The decision wws not made 
on any such view. The Sovereignties of England and 
Scotland are not united by Compact at all. The separate 
Sovereignties of these countries became united by a 
union of the CroAvns of both, by regular descent in the 
person of James VI, of Scotland, who became James I, 
of England, upon the death of Elizabeth. The declara- 
tory Act of the Parliaments of both, setting forth the 



Col. IX.] UNION OF ENGLAND AND SCOTLAND. 395 

fact of the Union thus resulting, and the respective rights 
of each, under it, distinctly states that the two King- 
doms thereafter shall be created into one Kingdom by 
the name of Great Britain. This was but the declara- 
tion of a unity of Sovereignty, which had occurred by 
the union of Crowns by descent, and not one of Compact 
at all. This distinction is clearly drawn by Blackstone 
in his Commentaries.* That was what he called an 
" Incorporate Union,'' which was very different from a 
" Federate alliance" 

But the difference between the Union of the Sover- 
eignties of England and Scotland and the Federal Union 
of these States, is fully set forth by Judge Washington, 
of the Supreme Court of the United States, in the Circuit 
Court of the Eastern District of Pennsjlvania, in the 
case of Lonsdale vs. Brown. This decision was made in 
1821. In delivering the opinion the judge says, " The 
Union between England and Scotland is, politically speak- 
ing, as intimate as between England and Wales, or be- 
tween the different counties of either. They form one 
Kingdom ; are subject to the same Government ; and are 
represented in the same legislative body ; and although 
the laws and customs of Scotland in force at the time 
of the Union were suffered to continue, yet they are 
alterable by the Parliament of Great Britain, even as 
they relate to private rights ; if the alteration should be 
deemed for the evident utility of the people of Scotland. 

"How different is the Union of these States? They 
are, in their separate political capacities, Sovereign and 
mdependent of each other, except so far as they have 
united for their common defence and for National pur- 
poses. They have each a Constitution and form of Gov- 

* Blackstone''s Commentaries, vol. i, p. 97, ncte E. 



396 CONSTITUTIONAL YIEW OF THE WAR. [Yol. I 

ernment, with all the attributes of Sovereignty. As to 
matters of National concern thev form one Government, 
are subject to the same laws, and may emphatically be 
denominated one people. In all other respects, they are 
as distinct as different forms of Government and different 
laws can render them. It is true, that the citizens of 
each State are entitled to all the privileges and immu- 
nities of citizens in every other State ; that the Sov- 
ereignty of the States in relation to fugitives from justice, 
and from service, is limited ; and that each State is 
bound to give full faith and credit to the public acts, 
records and judicial proceedings of her sister States. 
But these privileges and disabilities are mere creatures 
of the Constitution; and it is quite fair to argue that the 
framers of that instrument deemed it necessary to secure 
them by express provisions. 

" In the case of Warder vs. ArrelJ, 2 Wash. Rep. 282, 
the question, in part, was, whether the tender laws of 
Pennsylvania, where the contract was made, ought to be 
regarded by the Courts of Virginia, where the suit was 
brought? and throughout the opinions delivered by the 
judges, Pennsylvania was treated as a foreign country. 
The president of the Court is express upon this point. 
He observes that, in cases of contracts, the laws of a 
foreign country wdiere the contract is made must govern. 
The same principle applies, though with no greater force, 
to the different States ^ of America ; for though they 
form a Confederated Government, yet the several States 
retain their individual Sovereignties, and loith respect to 
tlieir municipal laios, are to each otiier foreignr'^ 

But in further proof of the modification of the views 
of Mr. Webster on the subject, I refer to his celebrated 

* Peters''s Beports, vol. ii. App. pp. 689, 690. 



Col. IX.] WEBSTER TO THE BARINCS. 39? 

letter to the Barings, in London, written the same year. 
Here it is. In it lie uses this language : 

" Your first inquiry is, ' whether the Legislature of one 
of the States has legal and Constitutional power to con- 
tract loans at home and abroad ?' 

" To this I answer, ' that the Legislature of a State has 
such power ; and how any doubt could have arisen on 
this point it is difficult for me to conceive. Every State 
is an independent. Sovereign, political community, except 
in so far as certain powers, which it might otherwise 
have exercised, have been conferred on a General Govern- 
ment, established under a written Constitution, and ex- 
erting its authority over the people of all the States. 
This General Government is a limited Government. Its 
powers are specific and enumerated. All powers not 
conferred upon it still remain with the States and with 
the people. The State Legislatures, on the other hand, 
possess all usual and^ extraordinary powers of Govern- 
ment, subject to any limitations which may be imposed 
by their own Constitutions, and, with the exception, as I 
have said, of the operation on those powers of the Con- 
stitution of the United States. The powers conferred on 
the General Government cannot of course be exercised by 
any individual State ; nor can any State pass any law 
which is prohibited by the Constitution of the United 
States. * * * 

" The security for State loans is the plighted faith of 
the State, as a political Community. It rests on the 
same basis as other contracts with established Govern- 
ments — the same basis, for example, as loans made in the 
United States under the authority of Congress ; that is 
to say, the good faith of the Government making the 
loan, and its ability to fulfil its engagements. * * * 

" It has been said that the States cannot be sued on 



398 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

these bonds. But neither could the United States be 
sued, nor, as I suppose, the Crown of England, in a like 
case. Nor would the power of suing, probably, give the 
creditor any substantial additional security. The solemn 
obligation of a Government, arising on its own acknow- 
ledged bond, would not be enhanced by a judgment ren- 
dered on such bond. If it either could not, or would not, 
make provision for paying the bond, it is not probable 
that it could or would make provision for satisfying the 
judgment."''' 

He here distinctly states that every State is an Inde- 
pendent, Sovereign, political Community, except in so far 
as certain powers, which it might otherwise have exer- 
cised, have been conferred on a General Government 
by a written Constitution, containing certain specified 
powers. This language is substantially identical with 
the language of the first Article of the old Confederation. 

An important fact in this connection, to be borne in 
nnnd, is that there was no vote taken on Mr. Calhoun's 
Resolutions, in the Senate, in 1833. The matter rested 
there with the discussion. The controversy that gave 
rise to it was amicably adjusted, as we shall see. The 
subject of the discussion, however, was taken up by the 
press, by public speakers, by the State Legislatures, and 
by the people generally. The great discussions of 1798, 
1799 and 1800, were revived. Old landmarks of principles 
were traced. The rapid strides of the Federal Govern- 
ment towards consolidation were again stopped. 

Mr. Calhoun had, on the 28th of December, 1837, re- 
newed the suljject in the Senate. He then brought for- 
ward another set of Resolutions on the same subject, 
covering the same ground, embodying the same j^rinc/'ples, 

*JViZes's National Begister^ vol. Ivii, pp. 273-274. 



Cot. IX.] SENATE'S EXPOSITION IN 1838. 399 

and pressed them to a vote. These Resolutions are as 
follows : 

"^ I. Resolved, That in the adoption of the Federal 
Constitution, the States adopting the same acted, sever- 
ally, as free, independent, and Sovereign States; and 
that each, for itself, by its own voluntary assent, entered 
the Union with the view to its increased security against 
all dangers, domestic as well as foreign, and the more 
perfect and secure enjoyment of its advantages, natural, 
political, and social. 

'' II. Resolced, That, in. delegating a portion of their 
powers to be exercised by the Federal Government, the 
States retained, severally, the exclusive and sole right 
over their own domestic institutions and police, to the 
full extent to which those powers were not thus delegated, 
and are alone responsible for them ; and that any inter- 
meddling of any one or more States, or a combination of 
their citizens, with the domestic institutions and police 
of the others, on anj^ ground, political, moral, or religious, 
or under any pretext whatever, with the view to their 
alteration or subversion, is not warranted by the Consti- 
tution, tending to endanger the domestic peace and tran- 
quillity of the States interfered with, subversive of the 
objects for which the Constitution was formed, and, by 
necessary consequence, tending to weaken and destroy 
the Union itself. 

"Ill, Resolved, That this Government was instituted 
and adopted by the several States of this Union as a 
common agent, in order to carry into effect the powers 
which they had delegated by the Constitution for their 
mutual security and prosperity ; and that in fulfilment 
of this high and sacred trust, this Government is bound 
so to exercise its powers, as not to interfere with the 
stability and security of the domestic institutions of the 



400 CONSTITUTIONAL YIEW OF THE WAR. [Vol.1 

States that compose this Union ; and that it is the solemn 
duty of the Government to resist, to the extent of its 
Constitutional power, all attempts by one portion of the 
Union to use it as an instrument to attack the domestic 
institutions of another, or to weaken or destroy such in- 
stitutions. 

'' IV. Resolved, That domestic slaverj^, as it exists in 
the Southern and Western States of this Union, composes 
an important part of their domestic institutions, inherited 
from their ancestors, and existing at the adoption of the 
Constitution, by which it is recognized as constituting an 
important element in the apportionment of powers among 
the States, and that no change of opinion or feeling, on 
the part of the other States of the Union in relation to it, 
can justify them or their citizens in open and systematic 
attacks thereon, with the view to its overthrow ; and that 
all such attacks are in manifest violation of the mutual 
and solemn pledge to protect and defend each other, 
given by the States respectively, on entering into the 
Constitutional Compact which formed the Union, and as 
such are a manifest breach of hiith, and a violation of 
the most solemn obligations. 

''V. Resolced, That the interference by the citizens 
of any of the States, with the view to the abolition of 
slavery in this District, is endangering the rights and 
security of the people of the District; and that any act 
or measure of Congress designed to abolish slavery in 
this District, would be a violation of the fliith implied in 
the cessions by the States of Virginia and Marjdand, a 
just cause of alarm to the people of the slaveholding 
States, and have a direct and inevitable tendency to dis- 
turb and endanger the Union. 

^"■And resolved, That any attempt of Congress to abol- 
ish slavery in any Territory of the United States in 



Col. IX J SENATE'S EXPOSITION IN 1838. 401 

wliicli it. exists, would create serious alarm, and just 
apprehension, in the States sustaining that domestic 
institution; would be a violation of good faith towards 
the inhabitants of any such territory who have been 
permitted to settle with, and hold slaves therein, because 
the people of any such Territory have not asked for the 
abolition of slavery therein ; and because when any such 
Territory shall be admitted into the Union as a State, 
the people thereof will be entitled to decide that ques- 
tion exclusively for themselves."* 

The first of tliese Resolutions, which distinctly alTirmg 
the great truth set forth in the first of his series in 1833, 
passed the Senate by the large majority of ■thirt3'-two to 
thirteen, on the third of January, 1838. Congressional 
Globe, Second Session, Twenty -fifth Congress, page 74. 
This was certainly the highest authoritative exposition of 
the subject that could be given. It was the amplest 
vindication of the merits of Mr. Calhoun's argument in 
1833. His argument and Mr. Webster's had gone to the 
country, and this was the verdict of the States upon tlje 
issue presented by them. More than two to one of the 
Senate of the United States affirmed most positively and 
solemnly that the Union of the States was Federal, and 
that in entering into it under the Constitution, the States 
did so severally as free, independent, Sovereign Powers 
That the Union was one of State.?, formed by States, 
and not by the people in the aggregate as one nation. 

But upon an analysis of the vote upon this Resolu- 
lution, and the others of the series, this authoritati\'e 
exposition derives increased importance. For if we look 
at the vote b}^ States, it will be seen that eighteen States 
voted for this Resolution, while only six voted against 

* Congressio7ial Globe and Appendix, 2d S., 25th Congress, p. 98. 
26 



402 COXSTITUTIONAL VIEW OF THE WAE. [Yol. 1 

it. One was divided, and one did not vote.* More than 
two thirds of the States give this construction to the 
character of the Government in 1838. It is true, Mr. 
Webster was then in the Senate, and did not vote for it. 
But he did not take up the gauntlet thrown downl>y 
Calhoun for another contest in debate on the principles 
thus re-announced. Mr, Clay, however, voted for it, 
which shows his understanding of the nature of the 
Government. 

On the second of these Resolutions, the vote stood 
thirty-one to nine on the ^i^r capita vote. By States 
the vote was twenty States for it, only four against, 
one divided, and one not voting.f 

Three fourths of the States voted for this Resolution, 
enough to have amended the Constitution according to its 
provision, if they had been in Convention for that purpose. 

The vote on the third Resolution Avas thirty-one to 
eleven. By States the vote was sixteen in favor and 
only four against it ; three were divided, and three not 
voting. A large majority of the States thus expressly 
affirmed that the Federal Government was nothing but a 
common agent of the States, and held all its powers by 
delegation and in trust. 

On the fourth Resolution, the vote stood thirty-four 

* Ayes, — Alabama, Arkansas, Coiiuectieut, Georgia, Illinois, Ken 
tu-cky, Louisiana, Mississippi, Missouri, Michigan, Maine, Xortli Caro- 
lina, New Hampshire, Xew York, South Carolina, Pennsylvania, Ten- 
nessee, Virginia, 18. Nays, — Delaware, Indiana, Massachusetts, New 
Jersey, Rhode Island, Vermont, G. Divided, — Ohio, 1. Not voting, — 
Mar3'land, 1. 

t Ayes. — Alabama. Arkansas, Connecticut, Delaware, Georgia, Illi- 
nois, Kentucky, Louisiana, Maine, Michigan, Mississippi, ISIissouri, New 
Hampshire, North Carolina, New York, South Carolina, Tennessee, 
Virginia, Pennsylvania and Maryland, 20. Nays. — Indiana, Massaehu- 
octts. New Jersey, Vermont, 4, Divided, — Ohio, 1, Not voting, — Rhode 
Island. 1. 



Col. IX.J WEBSTER'S CAPON SPRINGS SPEECH. 403 

for it, and only five against it. By States the vote was 
eighteen for it, and only two against it, while two were 
divided, and four not voting. 

On the fifth Resolution, the vote was thirty-six to 
eight. This Resolution was slightly amended, on motion 
of Mr. Clay, from wdiat it was when at first introduced. 
On the second clause of it, the vote by States w^as nine- 
teen for it, three only against it ; three divided, and one 
not voting. 

These votes all show conclusively how the Constitution 
was then understood by the " ambassadors of the States," 
as Mr. Ames, in the Massachusetts Convention, had 
styled the Senators. This is the construction of it they 
put on perpetual record. Could any man desire an 
ampler vindication of the correctness of his position than 
Mr. Calhoun had of the truth of his principles, of 1833, 
thus declared by two thirds of the States themselves, 
through their ambassadors in the Senate, five years after- 
wards. 

It was after these Resolutions had been passed, after 
the dicussions that had ensued between 1S33 and 1838, 
after the revival of the principles of 1798-99-1800, 
which had slumbered so long on these subjects, that Mi\ 
Webster, in 1839, made the speech he did, before the 
Supreme Court of the United States, and wrote the letter 
he did to the Baring Brothers & Co., touching the nature 
of the Government, in both of which he fully admits ti.at 
the States are Sovereign, except in so far as they have 
delegated specific Sovereign powers. But " Sovereignty'' 
itself, as he says, not being mentioned in the Constitu- 
tion, must, as a necessary result, remain with the States, 
or the people thereof. 

But besides all this, as a further proof of Mr. Webster's 
change of views as to the Constitution being a Compact 



404 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

between the States, I cite you to a later speech made by 
hmi at Capon Springs, in Virginia, on the 28th June, 
1851. Here it is.-'= In this he says: 

'' The leading sentiment in the toast from the Chair is 
the Union of the States. The Union of the States! 
What mind can comprehend the consequences of that 
Union, past, present, and to come ? The Union of these 
States is the all-absorbing topic of the day; on it all men 
write, speak, think, and dilate, from the rising of the sun 
to the going down thereof And yet, gentlemen, I feai 
its importance has been but insufficiently appreciated." 

Further on he says : 

" How absurd it is to suppose that when different 
parties enter into a Compact for certain purposes, eitliei 
can disregard any one provision, and expect, nevertheless, 
the other to observe the rest ! I intend, for one, to regard, 
and maintain, and carry out, to the fullest extent, the 
Constitution of the United States, Avhicli I have sworn 
to support in all its parts and all its provisions. It is 
written in the Constitution : 

" ' No rERSON HELD TO SERVICE OR LABOR IN ONE StATE, 
UNDER THE LAWS THEREOF, ESCAPING INTO ANOTHER, SHALL, 
IN CONSEQUENCE OF ANY LAW OR REGULATION THEREIN, BE 
DISCHARGED FROM SUCH SERVICE OR LABOR, BUT SHALL BE 
DELIVERED UP ON CLAIM OF THE PARTY TO W^HOM SUCH 
SERVICE OR LABOR MAY BE DUE.' 

" That is as much a part of the Constitution as any 
other, and as equally binding and obligatory as any 
other on all men, public or private. And who denies 
this? None but the abolitionists of the North. And 
pray what is it they will not deny ? They have but the 
one idea; and it would seem that these fanatics at the 

* PamiMei Copy. 



Col. IX.] WEBSTER'S CAPON SPRINGS SPEECH. 405 

North and the secessionists at the South, are putting their 
l>eads together to derive means to defeat the good designs 
of honest and patriotic men. They act to the same end 
and the same object, and the Constitution has to take 
the fire fi'om both sides. 

" I have not hesitated to say, and I repeat, that if the 
Northern States refuse, wilfully and deliberately, to carry 
into effect that part of the Constitution which respects 
the restoration of fugitive slaves, and Congress provide 
no remedy, the South would no longer be bound to 
observe the Compact. A bargain cannot be broken on 
one side and still bind the other side. I say to you, gentle- 
men, in Virginia, as I said on the shores of Lake Erie 
And in the city of Boston, as I may say again, in that 
city or elsewhere in the North, that you of the South 
have as much right to receive your fugitive slaves, as the 
North has to any of its rights and privileges of naviga- 
tion and commerce." 

Again, said he : " I am as ready to fight and to fiill 
for the Constitutional rights of Virginia, as I am for 
those of Massachusetts." 

In this speech Mr. Webster distinctly held that the 
Union was a Union of States. That the Union was 
founded upon Compact. And that a Compact broken on 
one side could not continue to bind the other. 

That this speech shows a modification of the opinions 
expressed in his speech of 1833, must be admitted by all. 
He had grown older and wiser. The speech of 1851, 
was in his maturer years, after the nature of the Govern- 
ment had been more fully discussed by the men of his 
own generation than it had been in 1830 and 1833. He 
was too great a man and had too great an intellect not 
to see the truth when it was presented, and he was too 
honest and too patriotic a man, not to proclaim a truth 



406 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

when he saw it, even to an unwilling people. In this 
quality of moral greatness I often thought Mr. Webster 
had the advantage of his great cotemporaries, Messrs. 
Clay and Cuilioun. Not that I would be understood as 
saying that they were not men of great moral courage, 
for both of them showed this high quality in many in- 
stances, but that they never gave the world such striking 
exhibitions of it as he did. It was the glory of his life 
that his was put to a test, in this particular, that theirs 
never was. On no occasion that I am aware of did Mr. 
Clay ever take a position which he did not know that he 
would be sustained in by the people of Kentucky. So 
with Mr. Calhoun, as to South Carolina. I do not say 
that they might not have done it if a sense of duty had 
required it, but they were either so fortunate or so un- 
fortunate as never to have that issue presented to them. 

Webster, on the contrary, often passed this ordeal, and 
that he passed it with unflinching hrnniess is one of the 
grandest features in the general grandeur of his character. 
Even his detractors have been constrained to render him 
unwilling homage in this respect. 

Theodore Parker, in his tirade on his character, after 
his death, is an illustration of this. He graphically de- 
scribed, if you recollect, his position, in Faneuil Hall, when 
he returned to give an account of his stewardship to his 
constituents, in 1842. Webster, you know, had remained 
in President Tyler's cabinet after Mr. Tyler had come to 
an open breach with the AVhig party. This was exceed- 
ingly displeasing to the Whigs of Massachusetts. His 
object in so remaining, however, was to preserve peace 
with England by effecting a settlement of the North East- 
ern Boundary question. This he saw a prospect of accom- 
plishing, and this, by remaining, he had accomplished. 
But even this great act could not atone for his disregard 



Col. IX.] WEBSTER'S MORAL COURAGE. 407 

of the wishes of his party. They were in the main di.s- 
affected, displeased, and indignant. The opposition had 
assumed a hostile attitude. The crisis in his affairs was 
gloomy enough. The political elements were gathering 
against him from every point. The storm had been brew- 
ing for some time. Denunciations opened from every 
quarter. All this Parker vividly described, on the 
occasion alluded to, and then said (I quote from 
memory): ''The clouds had thickened into blackness 
all around, and over him, and hurled their thunders 
fearfully upon his devoted head ! But there he stood 
in Faneuil Hall and thundered back again! It was the 
ground lightning from his Olympian brain !" 

This fifTure was not too exairsrerated for the occasion. 
It gave a truthful representation of the majesty of the 
man whom he was endeavoring to depreciate, disparao;e, 
and defame. In rendering this homage he was but re- 
enacting the part of the Prophet of Aram, who went 
out to curse, l^it was constrained to honor instead. 

This was not the only instance in which Mr. Webster 
exhibited this highest quality of human nature. 

On this point you will excuse me for repeating what I 
said on another occasion : 

" One of the highest exhibitions of the moral sublime 
the world ever witnessed, was that of Daniel Webster, 
when, in an open barouche in the streets of Boston, he 
proclaimed, in substance, to a vast assembly of his con- 
stituents — unwilling hearers — that 'they had conquered 
an uncongenial clime ; they had conquered a sterile soil ; 
they had conquered the winds and currents of the Ocean ; 
they had conquered most of the elements of nature ; but 
they must yet learn to conquer their prejudices !' 1 know 
of no more fitting incident or scene in the life of that 
wonderful man, ' Glarus et vlr Fortlssimus,' for perpetu- 



408 CONSTITUTIONAL YIEW OF THE WAR. [Vol.1. 

ating the memory of the true greatness of his character, 
on canvas or in marble, than a representation of him as 
he then and there stood and sj^oke ! It was an exhibi- 
tion of moral grandeur surpassing that of Aristides when 
he said, ' ! Athenians, what Themistocles recommends 
would be greatly to your interests, but it would be 
unjust !'" 

Such exhibltious of moral courage his great rivals 
never gave — never had occasion, perhaps, to give. But 
you see the estimation in which I hold Mr. Webster. I 
did entertain for him the highest esteem and admiration 
I did not agree with him in his exposition of the Consti' 
tution in 1833, but I did fully and cordially agree with 
him in his exposition in 1839, and 1851. According to 
that the Constitution was and is a Compact between the 
States. 

But to return from this digression. Whether Mr. 
Webster ever did or did not modify the opinions expressed 
in the speech you have read is not the, question before 
us, that is what is the true construction of the Constitu- 
tion on the point under immediate consideration. Wg 
have seen the exposition of the Supreme Court of the 
United States, which Mr. Webster maintained was the 
final arbiter, and we have seen the exposition of the 
United States Senate, that is the exposition of the States 
themselves by their ambassadors in 1839. Now, in 
addition to this, I wish to call your special attention to 
a like exposition by the same high authority, as late as 
1860, not twelve months before the war began. 

Mr. Jefferson Davis, of whom and about whom we shall 
have much to say as we proceed, submitted to the Senate, 
on the 29 th of February, a series of resolutions, declara- 
tory of the principles of the Government on the very imh- 
jects out of which the war sprung. He was then Senator 



Col. IX.] SENATE'S EXPOSITION IN 1860. 409 

from Mississippi. These Kesolutions passed the Senate 
May 24, 1860. Here they are. I call your special atten- 
tion to the first and second of these. 

"1. Resolved, That, in the adoption of the Federal Con- 
stitution, the States adopting the same, acted severally aa 
free and independent Sovereignties, delegating a portioi 
of their powers to be exercised by the Federal Govern- 
ment for the increased security of each against dangers, 
domestic as well as foreign ; and that any intermeddling 
by any one or more States, or by a combination of their 
citizens, with the domestic institutions of the others, on 
any pretext -whatever, political, moral, or religious, with 
a view to their disturbance or subversion, is n violation 
of the Constitution, insulting to the States so interfered 
with, endangers their domestic peace and tranquillity — 
objects for which the Constitution was formed — and, by 
necessary consequence, tends to weaken and destroy the 
Union itself 

"2. Resolved. That negro Slavery, ps it exists in fif- 
teen States of this Union, composes an important portion 
of their domestic institution, inherited from their ances- 
tors, and existing at the adoption of the Constitution, by 
which it is recognized as constituting an important ele- 
ment in the apf)ortionment of powers among the States, 
and that no change of opinion or feeling on the part of 
the non-slaveholding States of the Union, in relation to 
this institution, can justify them or their citizens in open 
or covert attacks thereon, with a view to its overthrow ; 
and that all such attacks are in manifest violation of the 
mutual and solemn pledge to protect and defend each 
other, given by the States respectively on entering into 
the Constitutional Compact which formed the Union, and 
are a manifest breach of faith, and a violation of the 
nioai solemn obligations. 



410 CONSTITUTIONAL MEW OF THE WAR. [Yol. I. 

" 3. Resolved, That the Union of these States rests on 



"^ 



the equality of rights and privileges among its members; 
and that it is especially the duty of the Senate, which 
represents the States in their Sovereign capacity, to 
resist all attempts to discriminate either in relation to 
persons or property in the Territories, which are the 
common possessions of the United States, so as to give 
advantages to the citizens of one State which are not 
equally assured to those of every other State. 

"4. Resolved, That neither Congress nor a Territorial 
Legislature, whether by direct legislation or legislation 
of an indirect and unfriendly character, possesses powei 
to annul or impair the Constitutional right of any citizen 
of the United States, to take his slave property into the 
common Territories, and there hold and enjoy the same 
while the territorial condition remains. 

'' 5. Resolved, That, if experience should at any time 
prove that the Judicial and Executive authority do not 
possess means to insure adequate protection to Constitu- 
tional rights in a Territory, and if the Territorial Govern- 
ment should fail or refuse to provide the necessary reme- 
dies for that purpose, it will be the duty of Congress to 
supply such deficiency. 

"6. Resolved, That the inhabitants of a Territory of the 
United States, when they rightfully form a Constitution 
to be admitted as a State into the Union, may, then, for 
the first time, like the people of a State, Avhen forming a 
new Constitution, decide for themselves whether slavery, 
as a domestic institution, shall be maintained or prohib- 
ited within their jurisdiction; and Hhey shall be ad- 
mitted into the Union, with or without slavery, as their 
Constitution may prescribe at the time of their admission.' 

" 7. Resolved, That the provision of the Constitution 
for the rendition of fugitives from service or labor, with- 



Col. is.] SENATE'S EXPOSITION IN 1860. 411 

out the adoption of v/hich the Union could not have been 
formed, and the laws of 1793 and 1850, which were 
enacted to secure its execution, and the main features of 
which, being similar, bear the impress of nearly seventy 
years of sanction by the highest judicial authority, should 
be honestly and faithfully observed and maintained by 
all who enjoy the benefits of our Compact of Union, and 
that all acts of individuals or of State Legislatures to 
defeat the purpose or nullify the requirements of that 
provision, and the laws made m pursuance of it, are hos- 
tile in character, subversive of the Constitution, and 
revolutionary in their effect." 

These Resolutions decidedly affirmed that the Consti- 
tation was formed by States — independent Sovereignties 
— that the Government established by it is a Federal 
Government — one founded on Compact, and that any 
interference, openly or covertly, directly or indirectly, 
by any of the States or their citizens, with the black 
population in any other of the States, or with the 
domestic institutions of any of the States against their 
own internal policy, would be a manifest breach of 
plighted faith — and, further, that all acts of the indi- 
vidual citizens of any of the States, as well as of the 
Legislatures of any of the States, intended to defeat or 
nullify that clause of th^ Constitution requiring the ren- 
dition of fugitives from service, were hostile to and sub- 
versive of the Constitution itself. 'V 

Judge Bynum. Though these Resolutions did pass the 
Senate, the vote on them was nothing but a party vote. 
Mr. Davis, in introducing them, was but paving the way 
for his subsequent course. This was but part of his 
scheme of Secession, which he and his associates had 
been concocting for years. Every Republican in tlie 
Senate, at the time, voted against these Resolutions, 
while every Democrat, in like manner, voted for them. 



412 CONSTITUTIONAL YIEW OF TUB WAR. [Vol. 1 

Mr. Stephens. So you might say of Mr. Calhoun's 
motives and intentions, in 1838. Such motives, I know, 
have been attributed to him. Now, I think all accu.sa- 
tions of this kind were exceedingly unjust to him, and 
so, I think in this case, you do great injustice to Mr. 
Davis. 

You are mistaken in saying that the vote upon these 
Resolutions was a strict party vote. Here is the vote. 
There were thirty-six Senators in favor of the first Reso- 
lution and only nineteen against it;"' nearly two to one 
on the per capita vote. Among the yeas I see James A. 
Pearce, John P. Kennedy and John J. Crittenden . 
When were they ever considered or looked upon as 
Democrats in the sense in which you use that term ? 
They certainly did not belong to the same political 
organization with Mr. Davis at that time, and had no 
sympathy with its bare party objects. While i\\Q p>cr 
capita vote is so striking, if we look at it by States it 
will appear even more so.f From a view of it, in 
this respect, it appears that nineteen States voted for the 

* Yeas. — IVIessrs. Benjaiiiin, Bigler, Brag?:, Bright, Brown, Chestnut, 
C. C. Cla}^ Clingnian, Crittenden, Davis, Fitzpatrick, Green, Gwin, Ham- 
mond, Hemphill, Hunter, Iverson, Johnson, of Arkansas, Johnson, of 
Tennessee, Kennedy, Lane, of Oregon, Latham, Mallory, Mason, Nichol- 
son, Pearce, Polk, Powell, Pugh, Rice, Sebastian, Slidell, Thompson, of 
New Jersey, Toombs, Wigfall and Yulee,— 36. JVays,— Messrs. Bing- 
ham, Chandler, Clark, Collamer, Dixon, Doolittle, Fesscnden, Foot, 
Foster, Grimes, Hale, Hamlin, Harlan, King, Simmons, Sumner, Ten 
Eyck, Wade, and Wilson,— 19. 

t Vote by States on the first Resolution : 

Yeas., — Alabama, Arkansas, California, Florida, Georgia, Indiana, 
Kentucky, Louisiana, Missouri, Mississippi, Minnesota, ISIaryland, 
North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Ten- 
nessee, and Virginia,— 19. iV((//s,— Connecticut, low^a, Maine, Massa- 
chusetts, JSIichigan, New York, New Hampshire, Rhode Island, Ver- 
mont, and Wisconsin,— 10. Z>ti'i(ZetZ,— Ohio awA Naw Jersey,— 2. Noi 
voimij, —Delaware and Illinois, — 2. 



Col. IX.J SENATE'S EXPOSITION IN 1860. 4l{{ 

first Resolution, onlj ten voted against it, wliile two 
■\vere divided, and two did not vote. Had the two 
absent States, Delaware and Illinois, been present, the 
vote would have been twenty for it, ten against iv, and 
three divided ; for Douglas, of Illinois, would hiive voted 
for it, and Trumbull of the same State would have 
voted against it. Would it not have been a strange 
spectacle to see twenty of the thirty-three States in 
Senatorial Council, taking the initiative step for a dis- 
memberment of the Union? Is such a supposition rea- 
sonable? Can any one suppose that these States, acting 
through their Senators, could have had any such design ? * 
Does not the object of these Resolutions clearly appear 
to have been just the reverse? Was not this simply 
but earnestly to declare the nature of the Government, 
and the only way in which the Union, under it, could be 
preserved? The vote on the seventh Resolution, looking 
to the jj>er capita vote, or the vote by States, is equally 
striking. On the per capita the yeas were thirty-six, 
and nays six. By States tlie vote vv'as twenty for the 
Resolution, and only four against it. One State divided, ' 
and eight not voting.* 

An important fact, in connection w^itli these Resolu- 
lutions, should ever be borne in mind. That is that 
every one of these ten States, whose Senators voted 
against them, had, by their State Legislatures, as we shall 
see, openly and intentionally disregarded their obliga- 



* Vote on the seventh Resolution : 

l^eas,— Alabama, Arkansas, California, Florida, Georgia, Indiana, 
Kentucky, Louisiana, Missouri, Maryland, Minnesota, Mississippi, 
New Jersey, North Carolina, Oregon, Tennsylvania, South Carolina, 
Texas, Tennessee, and Virginia,— 20. i\ro;ys,— ISIassachusetts, Michi- 
gan, New Hampshire, and Vermont, — 4. DiyicZetZ,— Ohio,— 1. Not 
fofih(/,— Connecticut, Delaware, Iowa, Illinois, Maine, New York, 
Rhode Island and Wisconsin, — 8. 



414 CONSTITUTIONAL VIEW OF THE WAR. [Yoi,. I, 

tions, under that clause of the Constitution, which re- 
quired the rendition of fugitives from service, and wliich 
acts, on their part, a large majority of the States thus by 
their resolves declared to be a breach of their plighted 
faith. Indeed, all these ten States were then under the 
influence of those who held that the Constitution was 
but " a Covenant with Death and an agreement with 
HgII."* Is it just or fiiir to Mr. Davis to say that he 
was meditating or planning Secession at that time, any 
more than it was the design of the nineteen States 
whi(ih actually agreed with him in the sentiments of the 
Resolutions ? 

Ir it not more in accordance with strict justice, to say 
nothing of that charity which should ever be exercised 
in investigations of this sort, to suppose that his object 
was to preserve the Union by having all the members to 
conform their action to its pLain and unmistakable pro- 
visions? If there were any cZiVunion sentiments then 
existing to whom should they be rightly attributed? 
Should they be attributed to those States and those 
Senators who were for maintaining the Union on the 
principles upon which it was formed, or those who were 
for maintaining a Government, barely, upon totally 
different principles? Three of these Resolutions of the 
series offered by Mr. Davis, and which passed the Senate, 
I am frank to say, I thought, at the time, though not 
then in public life, ahd still think, ought not to have been 
brought forward. 

Major Heister. Which ones are they? 

Mr. Stephens. The fourth, fifth, and sixth. 

Prof. Norton. These are the ones that relate to the 
doctrine of Popular or Squatter Sovereignty, as it was 
called. What objections had you to them? 

* LunVs Origin of the War. p. 109. 



C.)L. IX.] MR. DAYIS AND SECESSION. 415 

Mr. Stephens. My objections related solely to the policy 
of introducing them. They presented questions which 
tended to divide and thus weaken the Constitutional 
Party — the State Rights, State Sovereignty Party — the 
great party throughout the country, everywhere, whatever 
cognomen its various subdivisions bore, which was for 
maintaining the Constitution, and the Union under it, as 
it was made and handed down to them from their ances- 
tors. It seemed to nie to be exceedingly inexpedient and 
impolitic as a matter of statesmanship to divide those 
thus cordially united on the more essential and vital 
principles of the Government, upon questions of so little 
practical importance, especially at such a crisis as that 
was in public affairs. The new Anti-Constitutional Party, 
as it might in my view very properly be styled, was then 
thoroughly organized under the old but misapplied name 
of Republican, and it should have been a matter of the 
utmost importance with the real friends of the Constitu- 
tion, and Union under it, not to divide their ranks upon 
such questions as those embraced in these three Piesolu- 
tions. This, in short, was my view of that subject. 
The only hope of the new party was in a division of 
its opponents. In case this division should become com- 
plete and irreconcileable I saw that a rupture of that 
party was an inevitable result, and with its rupture a 
rupture of the Union, upon the principles upon which 
it was formed, seemed to me to be equally inevitable. 
I am equally frank in stating that there were some 
niuongst us who meant to use this question for no pur- 
pose whatever, but to produce such a ruptare both of the 
party and of the Union. I did not, however, then or 
now, think that Mr. Davis belonged to that class. No 
man, in my opinion, which I give you candidly, is less 
anderstood at the North, and perhaps to a great extent, 



416 CONSTITUTIONAL VIEW OF THE WAR. [Vol.1 

at the South, too, than Mr. Davis, on this question. 1 
may be wrong, but I assure you I never regarded him as 
a Secessionist, properly speaking; that is, I always re- 
garded him as a strong Union man in sentiment, so long 
as the Union was maintained on the principles upon 
which it was founded. He was, without doubt, a thorough 
State Rights, State Sovereignty man. He believed in the 
right of Secession ; but what I mean to say is, that in my 
opinion, he was an ardent supporter of the Union on the 
principles, as he understood them, upon which, and for 
which, the Union was formed.. There were, as I have 
said, many public men amongst us who after these 
Resolutions passed the Senate, and after the Presidential 
canvass was opened upon them, and the various issues 
presented in the Party platforms of the day, as we shall 
see, who were openly for Secession in case Mr. Lincoln 
should be elected upon the principles on which he 
was nominated. But Mr, Davis, as far as I know or be- 
lieve, did not belong even to this class. If he was in 
ffwor of Secession barely upon the grounds of Mr. Lin- 
coln's election, I am not aware of it. He certainly made 
no speech or wrote any letter for the public during that 
canvass that indicated such views or purposes. I never 
saw a word from him recommending Secession as the 
proper remedy against threatening dangers until he 
joined in the general letter of the Southern Senators and 
Representatives in Congress to their States, advising 
them to take that course. 

This was in December, 1860, and not until after it was 
ascertained in the Committee of the Senate, on Mr. Crit- 
tenden's proposition for quieting the apprehensions and 
alarm of the Southern States from the accession of Mr. 
Lincoln to power, that the Republicans, his supporters, 
'Should not agree to that measure. It is well known that 



Col. XI.] MR. DAVIS AND SECESSION. 417 

lie and Mr. Toombs Loth declared their willingness to 
accept the adoption of Mr. Crittenden's measure as a fnial 
settlement of the controversy between the States and 
sections, if the part}' coming into power would agree tc 
it in the same spirit and with the same assurance. It 
was after it w^as known that this party would not entei 
into any such settlement, or give any assurance for the 
future, that Mr. Davis joined other Southern Senators 
and Representatives advising the Southern States to 
secede, as the proper remedy for what he and they con- 
sidered impending dangers to their rights, security, and 
future welfare. There is nothing in Mr. Davis's life, or 
public conduct, that I am aware of, that affords just 
grounds for believing that he ever desired a separation 
of the States, if the principles of the Union, under the 
Constitution, had jjoen faithfully adhered to by all the 
Parties to it. These w^ere the sentiments of all his 
speeches, in Congress and out of it, as far as I have ever 
seen, even down to his last most touching leave-taking 
address to the Senate ! 

But all this is digressing from the matter before us. 
"We shall have enough of these questions hereafter. The 
point we are now considering is not the object or motive 
of Mr. Davis in offerin!2: these Resolutions. It is the 
exposition actually made by the Senate of the United 
States, nineteen States to ten States, of the real nature 
and character of the Government. Mr. Davis was but 
the instrument, the draftsman, through whom this over- 
whelming majority of the States announced for them- 
selves the nature of the bonds of their Union! This 
exposition was as late as 1860, and substantially the 
same that had been given by the same August Body of 
aml)assadors representing their Sovereignty in 1838, 
27 



418 CONSTITUTIONAL VIEW OF THE WAR. [Vol.1, 

twenty-two years before! Tluat exposition was that the 
Constitution is a Compact between Sovereign States. 

So, after this very long talk, wandering the while far' 
from the point, we finally return to the same place at 
which we had arrived before taking up Mr. Webster's 
speech. We now stand just where we did then. We 
have gone through with his great alignment and Mr. Cal- 
houn's reply, to which no rejoinder was ever made. We 
have seen that the Senate, by a nearly three fourths vote 
of the States, in 1838, and by a vote of nearly two to 
one, in 1860, sustained that construction of the Constitu- 
tion which was set forth in the first of Mr. Calhoun's 
Resolutions in 1833, and which I maintain. The deci- 
sions of the Supreme Court referred to, sustain the same 
view also. We have seen further, that Mr. AYebster 
himself, in his riper years, held that the Union was " a 
Union of States T That it was founded upon "Compact," 
and that " a bargain cannot be broken on one side and 
still bind the other side." 

Does it not, therefore, clearly appear from these high 
authorities, and even upon the authority of Mr. Webster 
himself, that the Government of the United States is a 
Federal Government, or as Washington styled it, a Con- 
federated Republic? AVhat further, if any thing, have 
you to say against this as an indisputably established 
conclusion ? 



COLLOQUY X. 

NULLIFICATION — GENEKAL JACKSON ON THE UNION — JEPtERSON ON TUE 
UNION — KENTUCKY llESOLUTIONS OF 1798 — SETTLEMENT OF THE NULLIFI- 
CATION ISSUE— THE DEBATES IN THE SENATE — WILKINS, CALHOUIT, 
GRUNDY, BIBB AND CLAY — THE COMPKOMISE ON THE PKOTECTIVE POIICT 
OP 1833 — THE WORKINGS OF THE FEDERAL SYSTEM UNDER TUE riilNCI- 
PLES ON WniCH THAT COMPROMSIE WAS MADE — THE GREAT PROSPERITY 
THAT FOLLOWED — NO PRESIDENT FROM JEFFERSON TO LINCOLN ELECTED, 
WHO DID NOT HOLD THE GOVERNMENT TO BE A COMPACT BETWEEN 
SOVEREIGN STATES — MADISON, MONROE, JOHN QUINCY ADAMS, JACKSON, 
VAN BUREN, HARRISON, POLK, TAYLOR, PIERCE, AND BUCHANAN, ALL 
SO HELD IT TO BE — THE SUPREME COURT NOT THE UMPIRE BETWEEN THE 
STATES AND THE GENERAL GOVERNMENT — MADISON, BIBB, MARSHALL, 
AND LIVINGSTON ON THIS SUBJECT — GENERAL JACKSON'S EXPLANATION 
OF T.HE DOCTRINES OP THE PROCLAMATION — HE HELD THE CONSTITUTION 
TO BE A COMPACT BETWEEN SOVEREIGN STATES — HIS FAREWELL ADDRESS. 

Major Heister. I liave listened with interest to this 
discussion as it has progressed thus far. Several new 
views, I candidly confess, have been presented by you. 
But I am not prepared to assent to your conclusion as a 
truth indisputably established. I was never a disciple 
of the school of either Story, Webster, or Calhoun. I 
was born, bred, and brought up a Jefiersonian Democrat. 

Mr. Stephens. So was I. 

Major Heister. Well, then, Andrew Jackson was the 
embodiment of the principles in which I was reared I 
am, therefore, a disciple of the School of the Hero c»f 
New Orleans as well as of the Sage of Monticello! I 
have never devoted much time to the study of the qu.^s- 
tijns and principles you have been discussing, and do 
not profess any very accurate acquaintance with or io- 

419 



420 CONSTITUTIONAL VIEW OF THE WATl. [Yoi.. I. 

formation upon tliem; but I have always understood 
very well, that General Jackson held, that the Union 
must be preserved. That he put down Nullification, and 
the whole theory of the Government attempted to be 
established by Mr. Calhoun. Now, I am a Union man 
upon the principles of General Jackson, His procla- 
mation against Nullification is my political text-book. 
Have you got that Proclamation ? 

Mr. Stephens. Yes, here it is, in the Statesman's 
Manual, vol. 2, page 794. 

Major IIeister. Well, did not General Jackson, in it, 
denounce the proceedings in South Carolina as treason- 
able, and did he not, by his Roman firmness and deci- 
sion, at the time, promptly quell the Piobellion in its 
incipiency, then brewing in that State, and thus save 
the Union and maintain the Constitution ? 

What Story and Motley and Webster said about 
the Constitution has but little weight with me. If 
Webster did not answer Calhoun, General Jackson, at 
least, silenced him, and put an end to Nullification and 
fill other attempts to overthrow the Government, for more 
than a quarter of a century. Here is the Proclamation, 
which is, as I have said, my text-book on this subject. 
It is too long for me to read the whole of it, nor is it 
necessary. I call your attention to only certain portions 
of it. 

Mr. Stephens. Before lookinor into the Proclamation 
[ must set you right on some matters of fact. 

Major Heister. How so ? What matters of fact ? 

Mr. Stephens. The statement by you that General 
Jackson put down Nullification and silenced Mr. Cal- 
houn. 

Major Heister. Are not these statements correct? 
Do you join issue on them ? 



Col. X.j NULLIFICATION. 421 

Mr. Stephens. I most certainlj^ do. Nullification in 
South Carolina, whether it be considered as an incipient 
Rebellion, or as a proper and peaceable mode of obtaining 
a redress of grievances as its advocates contended, was 
never put down or quelled bj General Jackson or any 
body else. Its further prosecution was abandoned by 
those who initiated it as a mode of redress, wdien the 
wrongs and grievances complained of were redressed by 
Congress, and not till then. 

It is not my purpose to defend the doctrine of Nullifi- 
cation, or to say how far General Jackson as President 
was right in issuing a Proclamation declaring his purpose 
to execute the laws in that instance. It is proper, how- 
ever, to state that the primary and leading object of its 
advocates was not Secession or Disunion. It was just the 
contrary. But so subtle were the principles upon which 
it was founded, that it was never understood by the 
country. South Carolina, ns well as a number of the 
other States, held, that the power to levy duties upon 
unports, not with a view to revenue, but to protect and 
aid particular classes, was not delegated to the Congress. 
Nullification, without Secession, was a remedy she re- 
sorted to, to defeat the operation of protective laws passed 
by the Congress. Many who believed in the perfect right 
of Secession, and looked upon that as the proper remedy 
in such cases of abuse of power as South Carolina com- 
plained of, were utterly opposed to Nullification. How a 
State could remain in the Union, with Senators and Repre- 
senfatives in Congress, and yet refuse obedience to the lav:s 
of Congress not set aside hy the Judiciary as unconstifu- 
tional, was, to this class, utterly incomprehensible ! But 
the merits of this doctrine are not now before us. Suf- 
fice it to say I was never an advocate of it. And all I 
mean now to say on this point is, that whether right or 



422 CONSTITUTIONAL VIEW OF THE WAR. [Yol. 1. 

wrong in principle, it was never abandoned until the 
protective policy, which it was resorted to to change, was 
abandoned by the Government. The Proclamation did 
not either put it down or silence its advocates or defenders. 
Mr. Calhoun's speech, which we have read, Avas made 
after that. The giving way was on the part of the Fed- 
eral Government and not the State Government. 

A brief statement of the matter is this. The Nullifi- 
cation Ordinance of South Carolina, which was to test 
the question, was passed the latter part of November, 
1832, to go into effect on the 1st of February, 1833. 
The Proclamation was issued on the 11th of December, 

1832. Congress was in session : on the 21st of January, 

1833, a Bill was introduced to meet the provisions of the 
Nullification Ordinance of the State, by counteracting 
Legislation and clothing the President with the necessary 
power to execute it, putting at his disposal the whole of 
the land and naval forces. This was called the Force 
Bill. The Constitutionality of the provisions of this Bill 
was denied by many who did not hold to the doctrine of 
Nullification. Unusual excitement prevailed. A great 
debate sprung up — the greatest since the formation of 
the Government, for then principles were discussed. 
The speeches of JNIr. Webster and Mr. Calhoun constitute 
part of this debate. Mr. Calhoun oilered his Resolutions 
the day after the Force Bill was introduced. Serious 
fears were entertained that if the Bill should pass, and 
become a law, while South Carolina held the position she 
did, that a collision would take place between the United 
States forces and the forces of the State ; and that wai 
would ensue. For, though South Carolina did not, in 
her Ordinance, contemplate the use of any force in the 
modus opei^andi of her chosen remedy, yet she declared 
her intention to be, to repel force by force, in case the 
United States should resort to force. 



Col. X.J NULLIFICATION. 423 

We can get some glimpses as to the position of the 
parties from the debates in the Senate at this time. Here 
is the opening of the discussion by Mr. AVilkins, who 
introduced the Force Bill,''' 

" Mr. Wilkins. All have agreed that on the first of 
next month, this solemn epoch will arrive. The ordi- 
nance of the State of South Carolina — the test law — that 
unprecedented law called the Replevin Act — and the law 
for the protection of the citizens of South Carolina — all 
looking to one object ; all go into operation on that day. 
He had said all these pointed to one object. To what 
object did they point? The answer was simple. To 
nullification of existing laws : To violent resistance to 
the United States." 

" Mr. Calhoun said he could not sit silent and permit 
such erroneous constructions to go forth. South Carolina 
had never contemplated violent resistance to the laws of 
the United States." 

" Mr. Wilkins was at a loss to understand how any 
man could read the various acts of the State of South 
Carolina, and not say that they must lead, necessarily lead, 
in their consequences, to violent measures. He under- 
stood the Senator from South Carolina (Mr. Calhoun) 
the other day as acknowledging that there was military 
array in South Carolina, but contending that it followed 
and did not precede the array of force by the United 
States." 

" Mr. Calhoun said he admitted that there was mili- 
tary preparation, not array." 

" Mr. Wilkins. If we examine the measures taken by 
the Administration, in reference to the present crisis, it 
would be found that they were not at all of that military 
character to justify the measures of South Carolina which 
it was alleged had followed them." 



* Niles's Rfyister, vol. xliii. Siix/p p. 53. 



424. , CONSTITUTIONAL YIEW OF THE WAR. [Yol. I. 

" Mr. Calhoun said that South Carolina was un- 
doubtedly preparing to resist force by force. But let the 
United States withdraw her forces from its borders, and 
lay this Bill upon the table, and her preparations would 
cease." 

" Mr. Wilkins resumed : That is, sir, if we do not 
oppose any of her movements all will be right. If we 
fold our arms and exhibit a perfect indifference whether 
the laws of the Union are obeyed or not, all will be quiet !" 

" Mr. Calhoun. Who relies upon force in this contro- 
versy? I have insisted upon it that South Carolina 
relied altogether upon civil process, and that, if the Gene- 
ral Government resorts to force, then only will South 
Carolina rely upon force. If force be introduced by either 
party, upon that party will fall the responsibility." 

"Mr. Wilkins. The General Government will not 
appeal, in the first instance, to force. It will appeal to 
the patriotism of South Carolina — to that magnanimity of 
which she boasts so much." 

" Mr. Calhoun. I am sorry that South Carolina cannot 
appeal to the sense of justice of the General Government." 

"Mr. Wilkins. The Government will appeal to that 
political sense which exhorts obedience to the laws of the 
country, as the first duty of the citizen. It will appeal 
to the moral force in the community. If that appeal be 
in vain, it will appeal to the judiciary. If the mild arm 
of the judiciar}^ be not sufficient to execute the laws, it 
will call out the civil force to sustain the laws. If that 
be insufficient, God save and protect us from the last 
resort. But if the evil does come upon the country, lolio 
is responsible for it ? If force be brought in to the aid 
of law, who, I ask of gentlemen, is responsible for it to 
the people of the United States ? That is the question. 
Talk of it as you please, mystify matters as you will, 



(JoL. X.] BIBB ON STATE SOVEREIGNTY. 425 

theorize is you may, pile up abstract propositions to any 
extent, at last the question resolves itself into one of obe- 
dience or resistance of the laws — in other words, of Union 
or dis-Union." 

Mr. Grundy, of Tennessee, presented the case in theso 
words : 

" The true question before the Senate is, shall the 
State of South Carolina be permitted to put down the 
revenue laws of the Union, prevent their execution with- 
in her limits, and no effort be made by this Government 
to maintain the majesty of the laws, and to counteract 
the measures adopted by that State to defeat and evade 
them."* 

The debate so commenced became exceedingly inter- 
esting as it progressed. It furnishes a rich mine for 
exploration at this time. Let us dig a little further into 
it, and sample some other fragments of its strata. 

In the Register (Mies), vol. xliii. Sup. pages 63 to SO, 
we have the following specimens, from Judge Bibb, of 
Kentucky : 

'' Mr. Bibb said it seemed to him that a false issue was 
presented. The question of war against South Carolina 
is presented as the only alternative. The issue was false. 
The first question is between justice and injustice. Shall 
we do justice to the States who have united with South 
Carolina in complaint and remonstrance against the 
injustice and oppression of the tariff? Shall we cancel 
the obligations of justice to five other States, because of 
the impetuosity and impatience of South Carolina under 
wrong and oppression? The question ought not to be 
whether we have the physical power to crush South 
Carolina, but whether it is not our duty to heal her dis- 

* I^iles''s Begistei\ vol. Ixiii, Supp. page 214. 



426 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

contents, to conciliate a member of the Union, to give 
peace and happiness to the adjoining States which have 
made common cause with South Carolina so far as com- 
plaint and remonstrance go. Are we to rush into a war 
with South Carolina to compel her to remain in the 
Union? Shall we keep her in the Union by force of 
arms, for the purpose of compelling her submission to 
the tariff laws of which she complains? How shall we do 
this? By the naval and military force of the United 
States, combined with the militia? Where will the 
militia come from? Will Virginia, will North Carolina, 
will Georgia, Mississippi, or Alabama, assist to enforce 
submission to the tariff laws, the justice and Constitu- 
tionality of which they have, by resolutions on your files, 
denied over and over again ? Will those States assist 
to forge chains by which they themselves are to be 
bound ? Is this to be expected, in the ordinary course 
of chance and probability ? * * '■' 

" My creed is that, by the Declaration of Independence, 
the States were declared to be free and independent 
States, thirteen in number, not one Nation — that the old 
Articles of Confederation nnited them as distinct States, 
not as one people: — that the treaty of peace, of 1783, 
acknowledged their independence as States, not as a 
single Nation ; that the Federal Constitution was framed 
by States, submitted to the States, and adopted by the 
States, as distinct Nations or States, not as a single Nation 
or people. 

" By canvassing these conflicting opinions, w^e shall 
the better unerstand how far South Carolina has trans- 
cended her reserved powers as a Sovereign State — how 
far we can lawfully make war upon her — and whether 
we, or South Carolina, are likely to transcend the barriers 
provided in the Constitution of the United States. 



Col. X.] BIBB ON STATE SOVEREIGNTY. 427 

^' I do not, said Mr. Bibb, wish to be misunderstood. 
In these times of political excitement, whatever is spoken 
or reported, may be misrepresented. He wislied it to be 
understood, that he did not approve of the doctrines of 
Carolina, in their full extent. But, if we make war upon 
her, to put down her principles, we must be sure that 
those principles are bad and dangerous. 

" What are her principles ? That she has a riglit to 
judge, in the last resort, in all questions concerning her 
rights ; or, to put it in still stronger language — if Con- 
gress attempts to enforce the revenue laws, she will 
resume her independence and Sovereignty. He did not 
approve of this course on the part of South Carolina, 
under all the circumstances. Still, he would like to 
know when and where South Carolina surrendered the 
right to secede from the Union, in case of a dangerous 
invasion of her rights by tlie Federal Government. In 
the solemn declaration of principles with which some of 
the States accompanied the adoption of the Constitution, 
this right it declared to be inalienable. There was too 
much truth in the axiom contained in many State 
Constitutions, that 'a frequent recurrence to first princi- 
ples is necessary to the maintenance of liberty.' Here 
Mr. Bibb read a passage from the Declaration of Inde- 
pendence : 'We hold these truths to be self-evident, that 
all men are created equal, that they are endowed by 
their Creator Avith certain unalienable rights ; that among 
these are life, liberty, and the pursuit of happiness.' 
Now, if South Carolina has mistaken her injury and her 
remedy, shall we make war upon her, and put down the 
principles asserted by the Declaration of Independence. 
The ratification, by the several States, of the Constitu- 
tion, adopted the same principles; and they were ac- 
cepted as forming a part of the Constitution. Mr. Bibb 



428 CONSTITUTIONAL YIEW OF THE WAR. [Yol. I. 

here referred to the declaration accompanying the ratifi- 
cation of the Constitution by the State of New York — 
that ^ all power was derived from the people, and could 
be resumed by the people whenever it became necessary 
for their happiness.' They go on to say, ' under these 
impressions, and declaring that the rights aforesaid cannot 
be abridged or violated, and that the explanations afore- 
said are consistent with the said Constitution ; and in 
confidence, that the amendments which shall have been 
proposed to the said Constitution, will receive an early 
and mature consideration, we, the said Delegates, in the 
name and in the behalf of the people of the State of New 
York, do, by these presents, assent to, and ratify the said 
Constitution,' etc. 

" The reservations of the State of Rhode Island were 
of the same tenor ; and he went on to read her declara- 
tion. * * * Mr. Bibb next adverted to the Articles 
of the old Confederation. They declared the Union 
should be perpetual, and that no alteration should be made 
in the Articles, but by consent of Congress, and of the 
Legislatures of each State of the Union. Here the Com- 
pact was declared to be perpetual, and yet we undertook 
to arrest it without the consent of any State. The Con- 
stitution provides that when nine States have ratified the 
Constitution, it shall go into operation. Why were the 
fundamental Articles of the old Confederation violated ? 
Flow could nine States be supposed to combine, and 
throw the other four out of the Union ? They claimed 
the right, under the principles adopted in the Declaration 
of Independence, to alter, reform, and amend their form 
of Government as much and as often as such change was 
necessary, in their opinion, to the right ends of Govern- 
ment, the interests of the people. The people have an 
unalienable, indefeasible right to make a Government 



OoL. X.] BIBB ON" STATE SOVEREIGNTY. 409 

which shall be adequate to their ends. Upon this irrln- 
dple it was that the old Comj)acd was destroyed, and it 
new one made. 

"We are now about to make war upon a State, which 
formed a part of the old Confederation, and became a 
party to the new Constitution, \vith an express reserva- 
tion of powers not expressly delegated by her. * * ^'' 

" Mr. Bibb asked if it was ijosslhle that the people of 
the States, in adopting this Constitution, could have in- 
tended to surrender ahsolutehj and forever the right icliich 
they had ohtained hy a Revohdion ? So icell did they under- 
stand the difficidty of shahlng off the poiuers which once en- 
chained lis, and so jealous were they of their newly acquired 
freedom, that they tooh care to say in the Constitution, that 
the iiovaers not deJcrjated hy them, were reserved to themseli'e=<. 
^' '^ "^ It stood on record, that one of the Eomr.n 
provinces rebelled against the Government, again arid 
again. The leaders were subdued, and many of the 
Senators of this party, and many of the people were 
taken or killed. The conquered province sent ambassa- 
dors to Rome, and when these ambassadors appeared, 
the consul asked of them, ' what punishment did they 
deserve ?' The answer of the ambassador was, ' buch 
punishment as he deserves who contends for liberty.' 
It was demanded of them by the Senate, -whether, if 
terms of peace were granted them, they would abide 
faithfully by them ?' They replied emphaticall}^, that ' if 
the terms were good and just, they would faithfully abide 
by them, and the peace should be perpetual ; but if they 
were unjust, the peace could barely last until they could 
return to their homes to tell the people what they were.' 
The Roman Senate were pleased with the spirit which 
T\'as thus exhibited, declared that ' they who thus con- 
tended for freedom, were worthy to be Roman citizens/ 
and gave them all which they demanded. 



430 CONSTITUTIONAL VIEW OF THE WAR [Vol.1. 

'•'■ He wished then an American Senate to imitate their 
noble example. It was a cause worthy of imitation. 
He invoked the Senate to sift the complaints of South 
Carolina, for they alone were worthy to be American 
citizens who contended zealously for the principles of 
civil liberty, and are not fit subjects to be denounced 
and accursed." 

This is enough of the general debates to show the 
temper of the times, the contrariety of sentiments exiHtiiig 
in various quarters, and the grounds for the apprehen- 
gions so universally prevailing that a collision might 
eniaie and the peace of the country be disturbed. 

Meantime hopes were entertained that Congress would 
abandon the protective policy, and strong efforts were 
made to get South Carolina to postpone the day of final 
action on her Ordinance, to give time for Congress to 
grant the relief sought. Mr. Verplanck, of New York, 
had introduced a Bill in the House of Representatives re- 
ducing the duties. This was on the 28th December, 
1832. The State of Virginia, who sympathized thoroughly 
with South Carolina in her complaints against the injustice 
of the Tariff laws, but who did not agree with her as to 
the remedy she had adopted to get rid of them by, sent 
one of her most distinguished statesmen, Benjamin Wat- 
kins Leigh, as a Commissioner to intercede, and to urge 
South Carolina to rescind her Ordinance, or at least to 
postpone action on it until the close of the first session of 
of the next Congress. Mr. Leigh's high mission w\as suc- 
cessful in part. South Carolina agreed, in view of the 
prospect of Congress reducing the duties to a revenue stand- 
ard, to postpone action on her Ordinance until the close of 
that session of Congress, which was on the 4 th of March.* 

* The following letter was addressed by Governor Ilayne to Mr. Leigh. 
»— j^Tiies's Beyister, vol. Ixiii, p. 435. 



Cor. X.J CLAY ON COMPROMISE OF 1833. 431 

It was at this stage of affairs that Mr. Clay, wlio was 
the author of the protective policy known as "the Ameri- 
can system," brought forward his celebrated compromise 
of 1833, upon the subject of the Tariff laws. He gave 

" Executive Department, Charleston, 5ih February, 1833. 

" Sir :— I have had the honor to receive your letter of the 5th instant, 
and in conipUanee with the request therein contained, communicated its 
contents, together with the Eesokitions of the Legislature of Virginia, 
of which you are the hearer, to General James Hamilton, Jr., the Presi- 
dent of the Convention. I have now the pleasure of inclosing you his 
answer, by whic]x you will perceive, that in compliance with the request 
conveyed through you, he will promptly re-assemble the Convention, to 
to whom the Pesolutions adopted by the Legislature of Virginia will be 
submitted, and by whom they will doubtless receive the most friendly 
and respectful consideration. In giving you this information, it is due 
to the interest manifested by Virginia, in the existing controversy be- 
tween South Carolina and the Federal Government, to state, that as soon 
as it came to be understood that the Legislature of Virginia had taken 
up the subject in a spirit of friendly interposition, and that a Bill for the 
modification of the tarilf was actually before Congress, it was determined, 
by the common consent of our fellow citizens, that no case should be 
made under our Ordinance until after the adjournment of the present 
Congress. The propriety of a still further suspension, can of course only 
be determined by the Convention itself. "With regard to the solicitude 
expressed by the Legislature of Virginia, that there should be ' no a}/peal 
to force'' on 'the jmrt of either the General Govei'nment or of the Govern- 
ment of South Carolina in the controversy now unliappily existing be- 
tween them,' and that 'the General Government and the Government 
of South Carolina, and all persons acting under the authority of either, 
should carefully abstain from any and all acts whatever, which may be 
calculated to disturb the tranquillity of the country, or endanger the ex- 
istence of the Union ;' it is proper that I should distinctly and emphati- 
cally state, that no design now exists, or ever has existed, on the part 
of the Government of South Carolina, or any portion of the people, to 
'appeal to force,' unless that measure should be rendered indispensable 
m repelling unlawful violence. 

" I beg leave to assure you, and through you the people of Virginia, and 
our other sister States, that no acts have been done, or are contemi)lated 
by South Carolina, her constituted authorities, or citizens, in reference 
to the present crisis, but such as are deemed measures of precaution. 
Her preparations are altogether defensive in their character, and not- 
withstanding the concentration of large naval and military forces in this 
harbor, and the adoption of other measures on the i)art of the General 



432 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

notice of his intention to ask leave to introduce such a 
Bill on the 11th of February, and did bring it forward on 
the next day, the 12th. 

His object was two-fold, as stated by him. One was 
to preserve the manufacturing interest from that ruin 
which would attend an immediate repeal of the protective 
duties; the other was by yielding the principle of pro- 
tection to prevent that collision between the Federal and 
State Governments which was then so seriously appre- 
hended. 

He said, on introducing it (I read still from Nllesa 
Register, vol. xliii, page 411): 

" I yesterday, sir, gave notice that I should ask leave to 
introduce a bill to modify the various acts imposing duties 
on imports. I, at the same time, added, that I should, 
with the permission of the Senate, ofier an explanation 
of the principle on which that bill is founded. I owe, 
sir, an apology to the Senate for this course of action, 
because, although strictly parliamentary, it is, neverthe- 
less, out of the usual practice of this body ; but it is a 
course which I trust that the Senate will deem to be jus- 
tified by the interesting nature of the subject. I rise, sir, 
on this occasion, actuated by no motive of a private^ 
nature, by no personal feelings, and for no personal ob- 

Government, which may be considered as of a character threatening the 
peace and endangering the tranquillity and safety of tlie State, we sliall 
continue to exercise tlie utmost possible forbearance, acting strictly on 
the defensive, firmly resolved to commit no act of violence, but prepared 
as far as our means may extend, to resist aggression. Nothing, you may 
be sTssured, would give me personally, and the people of South Carolina, 
more satisfaction than that the existing controversy should be happily 
adjusted, on just and liberal terms ; and I beg you to be assured, that 
nothing can be further from our desire, than to disturb the tranquillity 
of the country or endanger the existence of the Union. 

"Accept, sir, lor yourself, the assurance of the high consideration of 
yours, respectfully and truly, 

" ROBERT Y. HAYNE. 

"To the Hon. B. W. Leigh." 



Col. X.] CLAY OX COMPROMISE OF 1S33. 453 

jects ; but exclusively in oljedience to a sense of the dutij 
whlcli I owe to my country. I trust, tliereJbre, tliat no one 
will anticipate on my part any ambitious display of sucL 
humble powers as I may possess. It is sincerely my 
purpose to present a plain, unadorned, and naked state- 
ment of facts connected with the measure which I shall 
have the honor to propose, and with the condition of the 
country. * * =•= In presenting the modification of the 
Tariff hiws, which I am now about to submit, I have two 
great objects in view. My first object looks to the Tariff, 
I am compelled to express the opinion, formed after tbe 
most deliberate reilection, and on full survey of the whole 
country, that, whether rightfully or wrongfully, the Tarifl 
stands in imminent danger. If it should even be pre- 
served during this session, it must fall at the next ses- 
sion. By what circumstances, and througli what cause, 
has arisen the necessity for this change in the policy of 
our country, I will not pretend now to elucidate. Othera 
there are who may differ from the impressions which my 
mind has received upon this point. Owing, however, to 
a variety of concurrent causes, the Tariff, as it now exists, 
is in imminent danger, and if the system can be preserved 
beyond the next session, it must be by some means not 
now within the reach of human sagacity. The fall of 
that policy, sir, would be productive of consequences 
calamitous indeed. When I look to the variety of inter- 
ests which are involved, to the number of individuals 
interested, the amount of capital invested, the value of 
the buildings erected, and the whole arrangement of the 
business for the prosecution of the various branches of th(5 
manufacturing art which have sprung up under the fos- 
tering care of this Government, I cannot contemplate any 
evil equal to the sudden overthrow of all those interests. 
History can produce no parallel to the extent of tiie mis- 
28 



434 CONSTITUTIONAL V'lEW OF THE WAR. [Vol. L 

chief which would be produced by such a disaster. The 
repeal of the Edict of Nantes itself was nothing in com- 
parison with it. That condemned to exile, and brought 
to ruin a great number of persons. The most respectable 
portion of the population of France were condenined to 
exile and ruin by that measure. But, in my opinion, 
sir, the sudden repeal of the Tariff policy would bring 
ruin and destruction on the whole people of this country. 
There is no evil, in my opinion, equal to the consequences 
which would result from such a catastrophe. 

" What, sir, are the complaints which unhappily divide 
the people of this great country ? On the one hand, it 
is said by those who are opposed to the Tariff, that it un- 
justly taxes a portion of the people and paralyzes their 
industry; that it is to be a perpetual operation; that 
there is to be no end to the system; which, right or 
wrong, is to be urged to their inevitable ruin. And what 
is the just complaint, on the other hand, of those who 
support the Tariff ? It is, that the policy of the Govern- 
ment is vacillating and uncertain, and that there is no 
stability in our legislation. Before one set of books are 
fairly opened, it becomes necessary to close them, and 
to open a new set. Before a law can be tested by experi- 
ment, another is passed. Before the present law has 
gone into operation, before it is yet nine months old, 
passed as it was under circumstances of extraordinary 
deliberation, the fruit of nine months' labor, before we 
know any thing of its experimental effects, and even 
before it commences its operations, we are required to 
repeal it. On one side we are urged to repeal a system 
which is fraught with ruin : on the other side, the check 
now imposed on enterprise, and the state of alarm in 
which the public mind has been thrown, renders all pni- 
dent men desirous, looking ahead a little way, to adopt a 



Col. X.] clay ON COMPROMISE OF 1833. 435 

state of things, on the stability of which they may ha\e 
reason to count. Such is the state of feeling on the one 
side and on the other. I am anxious to find out some 
principle of mutual accommodation, to satisfy, as flir afsi 
practicable, both parties — to increase the stability of our 
legislation ; and at some distant day— -but not too distant, 
when we take into view the magnitude of the interests 
which are involved — to hring down the rate of duties to 
that revenue standard for rvhich our opponents have so long 
contended. The basis on which 1 wish to found this 
modification, is one of time ; and the several parts of the 
Bill to which I am about to call the attention of the 
Senate, are founded on this basis. I propose to give pro- 
tection to our manufactured articles, adequate protection, 
for a length of time, which, compared with the length of 
human life, is very long, but which is short, in propor- 
tion to the legitimate discretion of every wise and paren- 
tal system of Government — securing the stability of 
legislation, and allowing time for a gradual reduction, on 
one side ; and, on, the other, proposing to reduce the duties 
to that revenue standard for which the opponents of the 
system have so long contended. I will now proceed to lay 
the provisions of this bill before the Senate, with a view 
to draw their attention to the true character of the bill." 

The bill proposed a gradual reduction of the duties on 
all articles on which they were then over twenty per 
cent, for ten years, so that at the end of ten years no 
duties should be above twenty per cent., wdiich was 
assumed to be about the revenue standard. After ex- 
plaining the bill and stating his second object in offering 
it, he said : 

" If there be any wdio want civil war — who want to 
see the blood of any portion of our countrymen spilt, I 
am not one of them — I \dA\ to see war of no kind; but 



436 CONSTITUTIONAL YIEW OF THE WAR. [Vol. I 

above all, I do not desire to see a civil war. When war 
begins, whether civil or foreign, no human sight is com- 
petent to foresee when, or how, or where, it is to termi- 
nate. But when a civil war shall be lighted up in the 
bosom of our own happy land, and armies are marching, 
and commanders winning their victories, and fleets are 
in motion on our coasts — tell me, if you can, tell me if 
any human being can tell its duration ? God alone knoAvs 
where such a war will end. In what state will be left 
our institutions ? In what state our liberties ? I want 
no war ; above all no war at home. 

" Sir, I repeat, that I think South Carolina has been 
rash, intemperate, and greatly in the wrong ; but I do not 
want to disgrace her, nor any other member of this 
Union. No : I do not desire to see the lustre of one single 
star dimmed of that (jlorious Coiifederaci/, which consti- 
tutes our political sun ; still less do I wish to see it blotted 
out, and its light obliterated forever. Has not the State 
of South Carolina been one of the members of this Union 
* in days that tried men's souls ?' Have not her ances- 
tors fought alongside our ancestors ? Have we not, con- 
jointly, won together many a glorious battle ? If we had 
to go into a civil war with such a State, how would it 
terminate ? Whenever it should have terminated, what 
would be her condition ? If she should ever return to 
the Union, what would be the condition of her feelings 
and affections — what the state of the heart of her people ? 
She has been with us before, when her ancestors mingled 
in the throng of battle, and as I hope our posterity will 
mingle with hers for ages and centuries to come in the 
united defence of liberty, and for the honor and glory of 
the Union. I do not wish to see her degraded or defaced 
as a member of this Confederacy. 

" In conclusion, allow me to entreat and implore each 



Col. X.l CLAY ON COMPKOMISB OF 1833. 437 

individual member of this body to bring into the consid- 
eration of this measure, which I have the honor of pro- 
posing, the same love of country which, if I know my- 
8<-lf. has actuated me; and the same desire of restoring 
harmony to the Union, wdiich has prompted this effort 
If we can forget for a moment — but that would be asking 
too much of human nature — if we could suffer, for one 
moment, party feelings and party causes — and as I stand 
here, before my God, I declare I have looked beyond 
those considerations, and regarded only the vast interests 
of this united people — I should hope that, under such 
feelings and with such dispositions, we may advantageously 
proceed to the consideration of this bill, and heal, before 
they are yet bleeding, the w^ounds of our distracted 
country." 

The" introduction of this bill, by Mr. Clay, caused 
great sensation. It was, perhaps, the most trying period 
of his life. Public meetings had been held in various 
places, in the manufacturing States, denouncing any 
modification of the protective system, and charging a 
disposition to such legislation to intimidation from the 
threats of South Carolina.* The Legislatures of Massor 



* The following are some of a series of Eesolutions adopted by a Tariff 
meeting at Boston, January 28, 1833 : 

''Resolved, That any legislation on the subject of the Tariff is highly 
injudicious at the present crisis. 

''Eesolved, That a surrender of the principle of protection, by a repeal 
of the Act of 1832, before the date of its operation, and by the same 
Congress which passed it, can be attributed to no cause but fear of the 
threats of South Carolina. 

''Resolved, That when the threats of a single State can intimidata 
Congress into an abandonment of measures deliberately adopted for tlie 
good of the whole, the Union will be virtually dissolved. 

" Resolved, That we earnestly hope and confidently trust in the wisdom 
and (irmness of Congress, that they will reject a bill which threatens 
such disgrace and disaster to the country. 

''Resolved, That the only projjer and expedient manner of lessening 



0,38 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

cbusettS; Rhode Island, Vermont, New Jersey and Penn- 
sylvania, had passed resolutions strongly opposed to any 
such legislation.* Mr. Clay, on this occasion, had to 
break witli liis old political friends, while he was offering 
np the darling system of his heart upon the altar of his 
country. 

Whatever else may be said of him, no one can deny 
that Henry Clay was a patriot — every inch of him — a 
patriot of the highest standard. It is said, that when he 
was importuned not to take the course he had resolved 
upon, for the reason amongst others, that it would lessen 
his chances for the Presidency, his reply was, " I would 
rather be right than be President." This showed the 
material he was made of. It was worth}^ a Marcellus or 
Cato. 

Just so soon as he got through with the speech an- 
nouncing the introduction of the bill, Mr. Calhoun imme- 
diately arose. The scene was intensely interesting as 
described by those who witnessed it. It was just such a 
scene as occurred in the same Hall on the 17th day of 
June, 1850, seventeen years afterwards, when Mr. Web- 
ster arose to speak on the turning question of the great 
adjustment of that year, as we shall see hereafter. All 
eyes were instantly fixed upon tlie Senator of South 
Carolina, as he addressed the Chair. The galleries and 
lobbies and aisles of the Chamber were crowded. The 
record of what occurred is thus put up. I still read from 
the same authority, pages 416-417. 

" Mr. Calhoun rose and said he would make but one or 

the revenue, is to reduce the duties on articles uot coining into competi- 
Uon with the products of the industry of this country, and to increase 
'.he duties upon such articles as can be supplied by our owu labor, to 
Ruch an extent as shall limit the iniportations from abroad, and thua 
.tlimhiish the revenue to the amount required." — 2files''s Register. 
* Slalciiman''s Manual^ vol. 3, p. 1010. 




"WTTE ■wm 



^MmX (DI&JV.X0 



^a 



CL 



"7 



Col. X.] CALHOUN ON COMPROMISE OF 1833. 439 

two observations. Entirely approving of the object for 
which this bill was introduced, he should give his vote in 
favor of the motion for leave to introduce it. He who 
loves the Union must desire to see this agitating question 
brought to a termination. Until it should be terminated, 
we could not expect the restoration of peace or harmony, 
or a sound condition of things, throughout the country. 
He believed that to the unhappy divisions which had 
kept the Northern and Southern States apart from each 
other, the present entirely degraded condition of the 
country, for entirely degraded he believed it to be, was 
solely attributable. The general principles of this bill 
received his approbation. He believed that if the 
present difficulties were to be adjusted, they must be ad- 
justed on the principles embraced in the bill, of fixing 
ad valorem duties, except in the few cases in the bill to 
which specific duties were assigned, 

" He said that it had been his fate to occupy a position 
as hostile as any one could in reference to the protecting 
policy ; but, if it depended on his will, he would not 
cive his vote for the prostration of the manufiicturing in- 
terest. A very large capital had been invested in manu- 
factures, which had been of great service to the country, 
and he would never give his vote to suddenly withdraw 
all those duties by which that capital was sustained in 
the channel into which it had been directed. But he 
would only vote for the ad valorem system of duties, 
which he deemed the most beneficial and the most equi- 
table. At this time he did not rise to go into a considera- 
tion of any of the details of this bill, as such a course 
would be premature, and contrary to the practice of the 
Senate. There were some of the provisions which had 
his entire approbation, and there were some to which he 
objected. But he looked upon these minor jDoints of 



440 CONSTITUTIONAL YIEW OF THE WAR [Vol. I. 

difference, as points in the settlement of which no difficul- 
ty would occur, when gentlemen met together in that 
spirit of mutual comj)romise which, he doubted not, 
would be brought into their deliberations, without at all 
yielding the Constitutional question as to the right of 
protection. [Here there was a tumultuous approbation 
in the galleries, which induced the Chair to order the 
galleries to be cleared.]"* 

This, sir, was the end of Nullification ! The Euthiif 
nasia of what was looked upon by so many as another 
Polyphemus, a real '' Monstrum horremlum, informe, 
ingens, cui lumen ademptum .'" It was neitlier put down 
or up, nor was the theory of the Government, on which 
the doctrine was founded, ever put down or up. It sim- 
ply was never put to a practical test. There were then 
no steam cars, much less telegraphic wires, to send the 
glad news of this adjustment, which was received by 
shouts at the Capital, throughout the country. Not on 
the wings of lightning, but as fast as it could be borne 
by lumbering stages, and puffing steamboats, it was 
received with rejoicing everywhere by the mass of the 
people, and by it new energy, new life, and new hope 
were inspired. At this result no one felt more relieved, 
or rejoiced, perhaps, than General Jackson himself. 

Mr. Clay's bill became a law on the 2d of March, 
1833. South Carolina soon after repealed her ordinance. 
In this way was peace preserved, harmony restored, the 
Union saved, and the Constitution maintained for fur- 
ther progress in that career of greatness on which the 
States under it had so gloriously entered. So much on 
that point. 

MuoR Heister. I stand corrected. I had been under 
a different impression. 

* Niles^s Register, vol. xliii, p 417. 



Col. X.] JEFFERSON ON THE CONSTITUTION. 441 

Mr. Stephens. Well, then, we will proceed to another 
point. You say you were born, bred and brought up a 
Jeffersonian Democrat. 

Major Heister. Yes, my grandfather was one of the 
electors of Pennsylvania who cast his vote for Jefferson, 
in 1800. I was not then born, but I have often heard 
him speak of that fierce contest and the principles in- 
■vjlved. I have never departed from these principles 
which he so thoroughly instilled into me. By them I 
have endeavored to live, and by them I hope to die. 

Mr. Stephens. Well, then, you will have to give it 
up as an indisputably established truth, I think, that the 
C onstitution of the United States is a Compact between 
Sovereignties, because Mr. Jefferson was elected upon 
this very issue. 

The administration of John Adams, who succeeded 
Washington in the Presidency, in 1797, bearing the 
popular name of Federal, had endeavored, as was be- 
lieved and charged, by construction and imijlimtlon, to 
give that effect to the Constitution which Patrick Henry 
thought would be done in its practical workings. The 
party still bearing this name, during Mr. Adams's term 
of office, claimed virtually, it was said, for the Federal 
Government, general, absolute power, and maintained 
that the Supreme Court was the only arbiter between 
the General Government and State Governments, or the 
people, on all questions arising from the action of the 
General Government. They passed the Alien and Sedi- 
tion laws, and acted generally upon the principle thai the 
Federal Government was a consolidated Union of the 
people of all the States in one single, great Republic. 
They still kept the Party name of Federal, because it 
was popular. This Party name, however, with their 
avowed principles, was nothing but a mask. It was but 
*' the livery of Heaven," stolen " to serve the Devil in." 



i42 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

It was then that the true friends of a real Federal 
Government, and not a consolidated one, were aroused 
from one end of tlie Union to the other. Mr. Jefferson's 
opinions were well known. As early as 1798, he had 
drawn up a set of Resolutions for the Kentucky Legisla- 
ture, setting forth the true nature of the Government. 
The first of these Resolutions is in these words : 

''Resolved, That the several States composing the 
United States of America, are not united on the prin- 
ciple of unlimited submission to their General Govern 
ment; but that by Compact under the style and title of 
a Constitution for the United States, and of amendments 
thereto, they constituted a General Government for special 
purposes, delegated to that Government certain definite 
powers, reserving, each State to itself, the residuary mass 
of right to their own Self-government ; and, that when- 
soever the General Government assumes undelegated 
powers, its acts are unauthoritative, void, and of no force ; 
that to this Compact each State acceded as a State ; and 
is an integral party, its co-States forming as to itself the 
other party; that this Government, created by this Com- 
pact, was not made the exclusive or final judge of the 
extent of the powers delegated to itself; since that would 
have made its discretion, and not the Constitution, the 
measure of its powers ; but, that as in all other cases of 
Compact, among parties having no common judge, each 
imrty has an equal right to judge for itself, as well of in- 
fractions as of the mode and measure of redress'"'''^ 

This Resolution, and a whole series on the same subject 
drawn up by him, passed the Legislature of Kentucky, 
with some slight modifications. 

Virginia also took her stand, not less decisive or unmis- 



BandaWs Life of Jefferson^ vol. ii, p. 449. See, also, Axjpendix D 



Co;,. X.] KENTUCKY RESOLUTIONS OF 1798. ^48 

takable. She passed the Resolutions which we have seen 
quoted in Mr. Calhoun's speech. These Resolutions were 
sent to all the States. The party in most of the States, 
claiming to be Federal, replied to them, joining issue with 
the doctrines set forth in these Resolutions. Virginia, in 
1799, took up the subject again and gave it a grave re- 
consideration. She re-affirmed her Resolutions of the year 
before with an elaborate report, drawn by Mr. Madison. 
These Resolutions, and this report of Mr. Madison, con- 
tain an exceedingly clear and able exposition of the nature 
of the Government which no student in our history ought 
to fail to read and study.* It was upon these that the 
great contest, fierce it was, as you have said, was waged 
between the so-called Federalists and the Jefiersonian 
Party, in 1800. Mr. Jefferson, as the acknowledged 
leader of the State Sovereignty Party was chosen as the 
standard bearer of the principles set forth in hi.-' own 
Resolutions. The Party name assumed by the Anti- 
Centralists, under the lead of Mr. Jefferson, was ger^crally 
that of Republican ; but in some places it was Democratic. 
But the issue in every State was squarely made upon the 
issue presented in the Kentucky and Virginia Resolu- 
tions, and Mr. Madison's Report of 1799. That was the 
most memorable epoch in our history, from the adoption 
of the Constitution down to the breaking out of the war, 
in 1S61. The question as to a proper construction of the 
Constitution was submitted to the people of the several 
States, and by them it was decided in favor of Mr. Jeffer- 
son's construction, and by that decision it was held to be 
settled, for more than half a century, that the Government 
of the United States is a Compact between States. Upon 
these principles and construction of the Constitution, Mr. 



* See tliem in full in A2)2jendh E. 



444 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

Jetferson was re-elected in 1805. Upon them Mr. Madi- 
son was elected in 1809, and 1813. Upon them Mr. 
Monroe was elected in 1817, and in 1821. Upon them 
Mr. John Quincy Adams (who had renounced the party 
which had made such a departure from principle during 
the Presidency of his flither) w^as elected, in 1825. Upon 
these principles General Jackson was elected in 1829, and 
re-elected in 1833. Upon them Mr. \^an Buren was 
elected in 1837. Indeed no President was elected, from 
Mr. Jefierson to Mr. Lincoln, who denied these principles. 
It is true that, in the election of General Harrison, other 
questions entered into the contest, but on these principles 
he was a Ptepublican of the Jeffersonian school. 

Judge Bynum. You do not mean to say that General 
Harrison was a Jeffersonian Democrat ? 

Mr. Stephens. I mean to say that he was a Jeffer- 
sonian Republican — that he believed in the principles of 
the Kentucky and Virginia Resolutions of 1798-99. And 
I mean to say, that no man was elected President of the 
United States, from 1800 to 1860, from Mr. Jefferson to 
Mr. Lincoln, who did not. 

Judge Bynum. I should like to see how you can show 
that General Harrison held these doctrines ? 

Mil. Stephens. That is easily done. Here is his inau- 
gural. From that I read as follows : 

" Oar Confederacy, fellow-citizens, can only be pre- 
served by the same forbearance. Our citizens must be 
content vvdth the exercise of the powders wdth which the 
Constitution clothes them. The attempt of those of one 
State to control the domestic institutions of another, cau 
only result in feelings of distrust and jealousy, and are 
certain harbingers of disunion, violence, civil war, and 
the ultimate destruction of our free institutions. Our 
Coiifederacij is perfectly illustrated by the terms and prin- 



Col. X.] ALL THE PRESIDENTS T*flOM 1800 TO 18C0. 445 

ciple-s governing a common co-partnership. There a fund 
of power is to be exercised under the direction of the 
joint counsels of the allied 77iemhers, but that which has 
been reserved by the individuals is intangible by the 
common Government, or the individual members compos- 
ing it. To attempt it finds no support in the principles 
of our Constitution. It should be our constant and ear- 
nest endeavor mutually to cultivate a spirit of concord 
and harmony among the various parts of our Confederacy. 
Experience has abundantly taught us that the agitation 
by citizens of one part of the Union of a subject not con- 
fided to the General Government, but exclusively under 
the guardianship of the local authorities, is productive of 
no other consequences than bitterness, alienation, discord, 
and injury to the very cause which is intended to be 
advanced. Of all the great interests. which appertain to 
our country, that of Union — cordial, confiding, fraternal, 
Union — is by far the most important, since it is the only 
true and sure guarantee of all others."* 

Do you want more pointed or conclusive testimony 
than this ? 

Mr. Webster, I will here remark, was General Har- 
rison's Secretary of State, and the presumption is that he 
must have approved, at that time (1841), the general 
principles of this inaugural, to whatever extent its doc- 
trines may imply a modification of his views expressed 
in 1833. But I said, and maintain, that no man, from Mr. 
Jefierson to Mr. Lincoln, was elected to the Presidency, 
who held contrary principles. 

The opinions of Mr. Van Buren, Mr. Polk, Mr. Pierce, 
and Mr. Buchanan, are well known. General Taylor, as 
General Harrison, was elected on other issues. No public 
expression of opinion on these principles was ever made 



* Statesman'' s Matmal^ vol. iii, p. 120u. 



446 CONSTITUTIONAL VIEW OP THE WAR. [Vol. I. 

bj him, that I cam aware of, except that in the construc- 
tion of the Constitution he should be governed " by the 
practice of the earlier Presidents, who had so large a share 
in its formation."* Washington, Jefferson, Madison, and 
Monroe must have been alluded to. He was well known, 
however, in early life, to have belonged to the Jefferson 
school of politics. Indeed, the very name of Federalist had 
become so odious to the popular mind throughout the 
United States, by the abuse of the word by those who 
applied it to themselves during the administration of the 
elder Adams, that no man openly professing the principles 
of that party could ever have been chosen President, from 
ISOOtolSGO. This, I think, may be asserted as an in- 
controvertible truth. Not only Mr. Jefferson, but every 
President elected, from him to Mr. Lincoln, held the Con- 
stitution to be a Compact between the States ! On this 
point there can be no doubt or question. 

Under this construction the Union, or Federal Republic 
formed by it, grew and flourished as no nation ever did 
before. Under this construction the States, in number, 
had increased from thirteen to thirty-three ! The terri- 
tory had been enlarged from less than a million of square 
miles to nearly three millions! The population had 
increased from less than four millions to over thirty-one 
millions! The exports had increased from less than 
forty millions to upwards of three hundred and sixty 
miUions of dollars per annum ! The great mass of inter- 
nal productions and developments had grown in an 
increased ratio ! 

Under this construction South Carolina had acted in 
1832. Under this construction the peace of the country 
was then maintained and our unsurpassed progress was 
not only not checlced or impeded by it, but received new 

* Inau-rural Address, StMesmxuVs Munual, vol. iv, p. 18G1 



Col. X.] PROSPERITY FROM 1843 TO 1860. 447 

impetus, and moved on with greatly increased momentum 
and brilliancy. 

Under the principles of free trade then established, to 
go into full operation in 1843, the manufacturing interests 
were not crippled. The industry of the coiuitry in none 
of its departments was paralyzed. New life and new 
energy sprung up everywhere. The exports of domestic 
manufactures from 1843 to 1860 increased from about 
eleven to upwards of thirty millions of dollars per cmnum! 
The tonnage of shipping increased from a little over two 
millions to upwards of five millions ! The miles of rail- 
road, a system of internal improvement just connnencec 
about the time of Nullification, increased from about five 
thousand to upwards of twenty-fi\c- thousand! The ex- 
ports of domestic products, staples, etc., increased from less 
than one hundred to upwards of three hundred millions! 
The production of cotton alone increased from less than 
sixty millions to upwards of one hundred and sixty 
millions of dollars per annum ! 

More than twelve hundred thousand square miles of 
territory were acquired during this period, between 1843 
and 1860, and seven new States, more than half the 
original number, were admitted into the Union! Within 
the same period, the genius of Morse had seized the idea 
of the magnetic telegraph, and had brought that wonder- 
ful discovery into practical operation by extending these 
iron nerves throughout the length and breadth of the 
countrj^, connecting the most distant points and uniting 
all together, as if under the influence of a common senso- 
rium ! Was the material progress, to say nothing of the 
moral and intellectual, of any nation in the world, greater, 
in the same space of time than was that of this Confede- 
rated Republic, from 1843 to 1860? Under this con- 
Ftruction of the Constitution all this prosperity and pro- 



443 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

gress, anterior to and subsequent to Nullification, were 
achieved ; and, I maintain, might have gone on, under 
the same construction, with like common prosperity and 
joint happiness, until the S3^stem covered the entire con- 
tinent, to the wonder and amazement of all other peoples 
and nations of the earth ! It was only when this great 
fundamental law of our political existence was violated, 
in 1860, by a different construction, the anti-Jeffersonian 
construction, that disorder, confusion, war, and all its dis- 
astrous results ensued. The vital laws of every organ- 
ism must be obeyed and conformed to, if its health, vigor, 
and d'^velopment, are preserved. The whole of our late 
troubles came from a violation of this essential and vital 
law of our political existence. 

But this is anticipatory. I only meant to say, Major, 
that if you still hold to the doctrines of Mr. Jefferson, 
that you must admit that the Constitution is a Compact 
between States, and that the Government under it is 
strictly Federal in its character. 

We will now take up the Proclamation of General 
Jackson, to which you referred as your political text- 
book, and see how it squares with the doctrine of Mr. 
Jefferson. 

Major Heister. Well, that is what I am now anxious 
to do. For what you have said has rather disturbed 
my equilibrium — especially, about Jackson's holding the 
doctrine that the Constitution is a Compact between 
Sovereign States. Here is the Proclamation. It is, as I 
said, too long to read entire. In it he holds very differ- 
ent doctrines, according to my understanding. In it he 
distinctly affirms, as I suppose you will admit, that "the 
people of the United States formed the Constitution." 
That they constitute '■^ one i^eople^' ^^ one nation." That 
the allegiance of the people of the several States v/as, by 



Col. X.J THE rROCLAMATION EEYIKWED. 44<) 

it, transferred to tlie Government of the United States, 
:ind that thej tlierehij became American citizen'^'. That 
no State has any right to nullify a law of Congress, or to 
secede from the Union. That the Supreme Court of the 
United States had been instituted as an arh'der to decide 
in the last resort upon all Constitutional questions touch- 
ing either the powers of the General Government or the 
reserved rights of the States; that States, as well as 
individuals, must be bound by the adjudications of that 
tribunal, and that any forcible resistance to the execu- 
tion of the laws of Congress, thus expounded, would be 
treason. 

These are the principles, in substance, of the Procla- 
mation, as I understand them, on the questions you are 
discussing, and they seem, to me, to be utterly inconsist- 
ent with what you would claim as an indisputably estab- 
lished conclusion, utterly inconsistent with the princi- 
ples upon which you say he was elected, and I must 
confess, also, that they seem to me to be utterly incon- 
sistent, too, w^ith the principles of Mr. Jefferson, em- 
bodied in the Kentucky resolution, you have read. 

I should like to hear what you have to say to thesy 
principles, thus set forth in this Proclamation, and how 
you can reconcile them with the principles upon which 
you say he was elected ? 

Mr. Stephens. I have several things to say in refer- 
ence to them. 

In the first place, what General Jackson said in this 
Proclamation, should be considered in connection with 
the exact state of public affairs at the time it was issued. 
South Carolina had not attempted to secede. Her policy 
was based upon the idea of remaining in the Union, and 
yet defeating the execution of the Federal laws upon the 
tariff within her limits. This was the state of things 

29 



450 CONSTITUTIONAL VIEW OF THE WAR. [You I. 

which called forth the Proclamation. A prominent fea- 
ture hi the Proclamation, which must be borne in mind, 
in construing all its parts, is this : 

" The Ordinance (that is South Carolina's Ordinance 
of Nullification) is founded, not on the indefeasible right 
of resisting acts which are inJainly unconstitutional, and 
too oppressive to be endured; bat on the strange posi- 
tion that any one State may not only declare an act of 
Congress void, but prohibit its execution ; that they may 
do this consistently with the Constitution ; that the true 
construction of that instrument permits a State to retain 
its place in the Union, and yet be bound by no other of 
its laws than those it may choose to consider as Consti- 
tutional." 

This was the statement by him of the case which 
prompted the Proclamation, and nothing in the Proclamiv 
tion should be received as t]ie authoritative exposition of 
the principles of General Jackson touching the nature of 
the Government, except such as bear directly upon the 
case then before him, and as stated by himself. Judges 
never hold themselves bound by any expressions that fall 
from them in delivering their opinions upon any matter, 
except those which bear directly upon the case at bar. 
These only are authoritative. All else are " ohiter dicta!' 

Applying this rule to this Proclamation, there is in it 
much of that character. It was evidently hastily penned, 
and it has in it many not well guarded expressions. 
Under this character may be considered what was said 
on the subject of citizenship and allegiance, for we have 
seen what the Supreme Court, the very tribunal to which 
he refers as the final arbiter in the last resort, had held 
upon these subjects.* That it would have been treason 



Ante, p. 76, et sequens. 



Cor. X]. THE TROCLAMATION REVIEWED. 451 

in any of the individual citizens of South Carolina, or 
any number of them, in their private character, to forci- 
bly resist the laws of the United States, ^oluJe tJie State 
was a member of tlie Union ivith her Sovereign ^DOwers un- 
resumed, no one ever denied. South Carolina did not 
den}'- it. She did not contemplate any forcible resistance 
to these laws. There is nothing in that statement against 
my position. Upon reading this entire Proclamation by 
itself, however, I frankly admit that a disciple of the 
Jefferson school may well say of it as Peter said of some 
of Paul's epistles, that is, that there " are some things" 
in it " hard to be understood, which they that are un- 
learned and unstable wrest, as they do also the other 
scriptures, unto their own destruction." But that General 
Jackson himself did not mean what some suppose his 
words in particular passages in^ply, will be made clearly 
to appear before I get through. Just now, in reply to 
the view given in the Proclamation, as you seem to un- 
derstand it, but as General Jackson did not, touching the 
powers of the Supreme Court to decide between the 
States and the General Government, upon questions in- 
volving their respective powers, the answer of Madison, 
in his report referred to, is conclusive. This was quoted, 
as we have seen, by Mr. Calhoun.* But, in addition to 
this, the answer of Judge Bibb, of Kentucky, in the 
Senate at the time, was so much fuller and so perfectly 
exhaustive of the subject, 3^ou will pardon me for read- 
ing extensively from it. It is in the same speech of his 
I read from before. Niless Register, vol. xliii, pages 6 '2 
to 80. Here it is. And in it he says : 

" That there are powers, authorities, and liberties, ap- 
pertaining to the States, which belonged to them as 

* A^ite, p. 377. 



452 CONSTITUTIONAL VIEW OF THE WAE. [Vol. I. 

States, and which they have not surrendered, but re- 
served, is undeniable. The general principle is clear, 
that in all ComjDacts, Leagues, Conventions, and Treaties 
between Sovereign States, Powers, and Potentates, each 
^arty has the right to judge whether a breach has been 
committed by the other party ; and in case of a wilful, 
deliberate breach, to take such measures for redress as 
prudence and the discretion of the injured party shall 
dictate. 

" Is the Compact between these States an exception to 
this general rule? If it is, then the States must, by 
some action of theirs, have surrendered this portion of 
their Sovereignty. What part of the Constitution de- 
clares such a surrender ? There is no such express de- 
claration of surrender. In the various enumerations of 
powers prohibited to the States, and agreed not to be ex- 
ercised by them, there is no declaration that they shall 
not exercise the right, appertaining to them as parties to 
the Compact, to judge of an excessive, alarming, and 
dangerous stretch of power by the Federal Government. 
The abridgment of the powers of the States in this par- 
ticular not being exjDressed, cannot be made out by im- 
plication, or by construction. The powers not delegated 
by the States to the United States, nor prohibited to the 
States by the Constitution, are reserved to the States. 
So says the Constitution. What clause in the Constitu- 
tion delegates to the Federal Government tJie sole power 
of deciding the extent of the grant of powers to itself, 
as well as the extent of the powers reserved to the 
States? 

" It is said that this power is vested by the Constitu- 
tion in the Supreme Court of the United States. The 
provisions are : 

" 'The Judicial power shall extend to all cases in law 



DoL. X.J BIBB ON THE SUPREME COURT. 453 

und equity, arising under this Constitution, the laws ol' 
the United States, and treaties made, or which shall be 
made, under their authority.' 

" ' This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all 
treaties made, or which shall be made, under the autho- 
rity of the United States, shall be the supreme law of 
the land, and the Judges in every State shall be bound 
thereby, any thing in the Constitution or laws of any 
State to the contrarj^, notwithstanding.' 

"These are the two provisions of the Constitution 
which are referred to as delegating the power to the 
Supreme Court, to be the sole judge of the extent of the 
powers granted, and of the powers reserved ; and as 
denying to the States the Sovereign power of protecting 
themselves against the usurpation of their reserved 
powers, authorities, and privileges. If the delegation to 
the Supreme Court, and prohibition to the States, are 
not contained in these two clauses, then they are not 
to be found in the Federal Constitution. 

"The latter clause cannot touch the question in debate; 
for that only declares the supremacy of the Constitution, 
and the treaties ' and laws made in pursuance thereof 
Powers exercised contrary to the Constitution, acts done 
contrary to the Constitution, by the exercise of authori- 
ties not under, but in violation of the Constitution, and 
by usurpation of State rights, State authorities, and 
State privileges, are the subjects under consideration, 

" Let us examine the former clause : ' The Judicial 
power shall extend to all cases, in Icno and equity, arising 
under this Constitution.' The case must be o^ ^ Judicial 
fower) it must be a case, 'in laio or equity,^ arising 
under the Constitution. The expression is not to all 
cases arising under the Constitution, treaties, and laws 



454 CONSTITUTIONAL YIEW OF THE WAR. [Yol I. 

of the United States, but it is ' to all cases in Jaw and 
equity.^ 

" 'Use is the law and rule of speech.' Bj this law 
and this rule we must examine the language of the Con- 
stitution. 

"A judicial power is one subject, — a political power is 
another and a different subject. A case in law, or a case 
in equity is one subject, — a political case is another and 
a different subject. 

''Judicial cases in law and equity, arising under the 
regular exercise of Constitutional powers, by laws and 
treaties made by authority, are different from political 
questions of usurpation, surmounting the Constitution, 
and involving the high prerogatives, authorities, and 
privileges of the Sovereign parties who made the Con- 
stitution. 

"In judicial cases arising under a treaty, the Court may 
construe the treaty, and administer the rights arising 
under it, to the parties who submit themselves to the 
jurisdiction of the Court in that case. But the Court 
must confine itself within the pale of judicial authority. 
It cannot rightfully exercise the political power of the 
Government, in declaring the treaty null because the 
one or the other party to the treaty has broken this or 
that article ; and, therefore, that the whole treaty is 
abrogated. To judge of the breach of the articles of the 
treaty, by the Sovereign contracting parties, and in case 
of breach to dissolve that treaty, and to declare it no 
longer obligatory, is a political power belonging not to 
the judiciary. It belongs to other departments of the 
Government, who will judge of the extent of the injury 
resulting from the violation, and whether the reparation 
shall be sought by amicable r^egotiation, or whether the 
treaty shall be declared tu? longer obligatory on the 



Col. X.] BIBB ON THE SUPREME COURT. 455 

Government and the people of the injured party. Yet, 
by the law of Nations, the wilful and deliberate breach 
of one article is a breach of all the articles, each being 
the consideration of the others; and the injured party 
has the right so to treat it. 

"By the Act approved on the 7th of July, 1798, the 
Congress of the United States declared themselves of 
right freed and exonerated from the stipulations of the 
treaties^ and of the Consular Convention theretofore 
concluded between the United States and France, and 
that they should not thenceforth be regarded as legally 
obligatory on the Government or citizens of the United 
States — because of the repeated violations on the part of 
the French Government, etc. 

'^Before this declaration, the Supreme Court of the 
United States was bound, in cases of judicial cognizance 
coming before them, to take the treaties as obligatory, 
and to administer the rights growing out of the treaties 
between France and the United States. After that de- 
claration, the Court was bound to consider the treaties as 
abrogated. The Courts had no power, before the Act of 
July, 1798, to inquire into violations, and, therefore, to 
declare the treaties not obligatory. After that act they 
had no power to demand evidence of the violations recited 
and revise the political decision of the Government. 

"To declare these treaties no longer obligatory was a 
2>olifical power, not a judicial power. Yet. the violations 
of these, committed under the authority of the French 
Government, and the consequent injuries to the citizens 
and Government of the United States, and the rights of 
the United States consequent therefrom, before the Act of 
July, 1798, were 'cases arising under the Constitution,' 
and treaties of the United States. But the judicial power 
did not extend to those cases of violation, so as to declare 



456 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

the treaties no longer obligatory. The question whether 
those violations should or should not abrogate the treaties, 
did not make a case in law or equity, for the decision 
of a judicial tribunal. Yet they were cases arising 
under the Constitution. The power to decide them be- 
longed to the Government of the United States as a 
political Sovereign ; but the judicial power did not ex- 
tend to them ; those cases belonged to the political powers, 
not to the judicial powers of the Government. 

" The British Courts of Admiralty executed upon the 
commerce of the United States the British orders in 
council, disclaiming the power to decide whether those 
orders in council were conformable to the general law of 
Nations, which every nation is bound to respect and 
observe. In like manner, the French Courts of Admi- 
ralty executed upon the commerce of the United States 
the Berlin and Milan decrees. 

'' The British and French Courts had not cognizance 
to judge the Sovereign powers of the Nations, and to de- 
clare those orders and decrees contrary to the law of 
Nations — that was not a judicial power. So the Courts 
of the United States, even the Supreme Court, had not 
the power to declare the treaties between the United 
States and France, and Great Britain, no lonorer oblijxa- 
tory upon the citizens and Government of the United 
States, because of the multiplied wrongs and injuries 
committed upon the citizens of the United States, under 
color of those orders in council, and decrees, infracting 
the laws of Nations, and treaties, and hostile to the 
rights of the Government of the United States. Those 
cases, in their effects upon the treaties and amicable 
relations between the United States and those Govern- 
ments, did not fall within the judicial power of the 
Courts of the United States. Those questions did not 



Col. X.] BIBB ON THE SUPREME COURT. 457 

fall within the description of ^ cases in law and equliij^ as 
used ill the Constitution of the United States, in confer- 
ring, vesting, and defining the powers of the judicial 
department. Those political powers belong to other de- 
partments of the Government. According to the law 
and rule of speech established by use, such powers are 
classed under the denomination of political powers, pre- 
rogative powers, not under the head of judicial powers. 

" Before I proceed to illustrate, by other examples, the 
distinctions which I have taken, between 'political powers 
and judicial powers, heUyeon j^oUtical questions and cases 
and Judicial questions or cases, I will refer to the declara- 
tion of one, whose opinions on Constitutional questions I 
know will command respect ; a man to whose opinions I 
willingly yield my respect, without, however, submitting 
with that implicit faith which belongs to fools. On the 
resolution of Mr. Livingston, toucliing the conduct of 
President Adams, in causing Thomas Nash, cdlas Jona- 
than Robbins, to be arrested and delivered over to a 
British naval officer, without any accusation, or trial, or 
investigation in a Court of Justice, Mr. Marshall, then a 
Kepresentative of Virginia, now Chief Justice of the 
United States, in defending the conduct of the President, 
thus delivered his opinion in that debate — {Appendix, 
5 Wheat, p. 17.) 

" ' By extending the judicial power to all cases in law 
and equity, the Constitution had never been understood 
to confer on that department any political power what- 
ever. To come within this description, a question must 
assume a legal form for forensic litigation and judicial 
decision. There must be parties to come into Court, who 
can be reached by its process, and bound by its powers ; 
whose rights admit of ultimate decision hy a tribunal to 
which they are hound to submit. A case in law or equity 



458 CONSTITUTIONAL VIEW OF THE WAR. [Vol.1 

may arise under a treaty; where riglits of individuals 
acquired or secured by a treaty, are to be asserted or de- 
fended in Courts.' ' But the judicial power cannot extend 
to political compacts.'* 

* Judge Marshall's remarks, here quoted in part, may be very properly 
given more at large. They are as follows : 

" This being established, the inquiry was, to what department was the 
power in question allotted ? 

" The gentleman from New York had relied on the second section of 
the third article of the Constitution, which enumerates the cases to 
which the judicial power of the Ilniied States extends, as expressly in- 
cluding that now under consideration. Before he examined that section, 
it would not be improper to notice a very material mis-statement of it, 
made in the Resolutions oflered by the gentleman from New York. By 
the Constitution, the judicial power of the United States is extended to 
all cases in laio and equity^ arising under the Constitution, Laws, and 
Treaties of the United States ; but the Resolutions declare that judicial 
power to extend to all questions arising under the Constitution, treaties, 
and laws of the United States. The diflerence between the Constitu- 
tion and the Resolutions was material and apparent. A case- in law or 
equity was a term well understood, and of limited signification. It was 
a controversy between parties, which had taken a shape for judicial de- 
cision. If the judicial power extended to every question under the Con- 
stitution, it Avould involve almost every subject proper for Legislative 
discussion and decision ; if to every question under the laws and 
treaties of the United States, it would involve almost every subject on 
which the Executive could act. The division of power, which the gen- 
tleman had stated, could exist no longer, and the other departments 
would be SAvallowed up by the Judiciary. But it was apparent that the 
Resolutions had essentially misrepresented the Constitution. He did 
not charge the gentleman from New York -with intentional misrepre- 
sentation ; he would not attribute to him such an artifice in any case, 
much less in a case where detection was so easy and so certain. Yet 
this substantial departure from the Constitution, in Resolutions affecting 
substantially to unite it, was not less worthy of remark for being unin- 
tentional. It manifested the course of reasoning by which the gentle- 
man had himself been misled, and his judgment betrayed into the 
opinions those Resolutions expressed. By extending the judicial x)Ower to 
all cases in laxo and equity, the Constitution had never been understood to 
confer on that department any 2'>olitical power ^ohatever. To come within 
this description, a question must assume a legal form for forensic litiga- 
tion and judicial decision. There must be parties to come into Court, 
who can be reached by its process, and bound by its power ; whose 



Col. X.] BIBB ON THE SUPREME COURT. 459 

"This distinction between a politicjil power and a ju- 
dicial power, is recognized and acted npon by the Supreme 
Court oi the United States, in the case of WilUams vs. 
Armrojd, 7 Cnmch, 423, 433. 

" Again, in the case of Marbury vs. Madison (1 Crcmch, 
137; 1st Peters s Condensed Reports, 270), this distinc- 
tion between the poUtical powers of Government and the 
judicial power, is most explicitly avowed and recognized 
by the Supreme Court. 

"The supremacy of that is a judicial supremacy only. 
It is supreme in reference to the other Courts in cjues- 
tions of a judicial character, brought within the sphere 
of judicial cognizance by controversies which shall have 
assumed a legal form for forensic litigation and judicial 
decision. There must be parties amenable to its process, 
bound by its power, whose rights admit of ultimate 
decision by a tribunal to which they are bound to submit. 
* Questions in their nature political, or which are by the 
Constitution and laws submitted to the Executive, can 
never be made in this Court.' 



rights admit of ultimate decision hy a tribunal to which they are bound 
to submit. 

"A case in law or equit}-, proper for judicial decision, may arise 
under a treaty, where the rt;;hts of individuals, acquired or secured by 
a treaty, are to be asserted or defended in Court. As under tire fourth 
or sixth article of the Treaty of Pia(;e with Great Britain, or under 
those articles of our late treaties with France, Prussia, and other 
nations, which secure to the subjects of those nations their property 
within the United States ; or, as would l)e an article, which, instead of 
gtipulatins:!; to deliver up an ofiender, should stipulate his ])unishment, 
provided the case was punishable by the laws and in the Courts of the 
United States. But the jiulkud jioiver cunnot extend P> polttical compacts; 
as the eshiblishment of the bouiulary line l)etwecn the American and 
British dominions ; the case of the late guarantee in our treaty with 
France, or the case of the delivery of a murderer under the twenty- 
seventh article of our present Li'eaty with Britain." — Annals of Con- 
grre.ss, Sixth Congress, page GOO. 



460 CONSTITUTIONAL YIEW OF THE WAR. [You I 

"The decision of the Executive, upon political ques- 
tions submitted to its discretion, is as si(j)7'eme as the 
decision of the Court within its jurisdiction. Neither 
department ought to invade the jurisdiction of the 
other, — so said the Supreme Court of the United States, 
in Marbury vs. Madison. * * * 

" The twelfth amendment to the Constitution takes 
away the jurisdiction which had been given to the Su- 
preme Court to hold jurisdiction of a suit against one of 
the United States by a citizen of another State, or by 
citizens or subjects of any foreign State ; but leaves the 
jurisdiction conferred over controversies between two or 
more States. If two States, therefore, have a contro- 
versy, which, in its character, makes a case in law or 
equity proper for judicial cognizance, it may be brought 
before the Supreme Court. Controversies between two 
or more States, about territory or limits, may be litigated 
before the Supreme Court of the United States. But 
then each State must have an opportunity, as a party, 
to prosecute or defend her right before the decision can 
bind her. Those are questions of meum et tuum, rights 
of property which one State claims to the exclusion of 
the other ; not political rights belonging to all the States 
respectively, where the rights and powers of one State 
does not exclude but establishes the rights of each and 
every other. Such rights claimed for all, as belonging 
equally to each and every of the States respectively, 
cannot make a controversy in law or equity between two 
States. 

" Political powers not delegated to the Federal Gov- 
ernment ; political powers reserved to the States, consti- 
tute the subjects of the propositions which are affirmed 
on the one side and denied on the other. The proposi- 
tions affirmed are, thai the powers of the Federal 



Col. X.] BIBB ON THE SUPREME COURT. ^g-j 

Government result from the Compact to winch the 
States are parties, that these powers are limited by the 
plain sense and intention of the instrument constituting 
that Compact, and no ftirther valid than they are autho- 
rized by the grants enumerated in that Compact'; ' and 
that, in case of a deliberate, palpable, and dangerous 
exercise of other powers, not granted by the said Com- 
pact, the States, who are parties thereto, have the right, 
and are in duty bound, to interpose for arresting the 
progress of the evil, and for maintaining, within their 
respective limits, the authorities, rights, and liberties 
appertaining to them.' "* 

This argument of Judge Bibb, in the United States 
Senate, I have read so copiously from, was the over- 
whelming answer given at the time, to w^hat w^ere then 
supposed to be the doctrines of the Proclamation uj)on 
the powers and jurisdiction of the Supreme Court, as an 
arbiter in the last resort between the General Govern- 
ment and the States as States. It is not only conclusive 
on these points, but it is completely exhaustive of the 
whole question of the general powers and jurisdiction of 
this Court, on which so much has been said and written. 
With it I conclude what I have to say, as I remarked, on 
the Proclamation in the first place. 

Now, in the second place, I will let General Jackson's 
own authoritative explanation of those parts you particu- 
larly refer to speak for itself General Jackson had been 
elected as a Jeffersonian Republican. Many parts of this 
Proclamation were not understood by his most devoted 
political friends. It was thought to contain doctrines 
inconsistent with the teachings of the Fathers of that 
school. Many who agreed with him thoroughly in his 

* N'iles''s Begister, vol. xliii. Siq')^'. p. 2. 



462 CONSTITUTIONAL VIEW OF THE WAR [Yol. I. 

position on Nullification thought that there were princi- 
ples in that paper, not bearing directly on that question, 
however, which were inconsistent with the true principles 
of State Rights and State Sovereignty, and which savored 
much "cf the doctrines of the Consolidationists of the 
elder Adams' times. This called forth from him, through 
the Washington Olobe newspaper, an explanation. The 
explanation was editorial — published not long after the 
great debate on his Proclamation and Force Bill. It was 
published, as stated, by authority. Now in this explana- 
tion will be found the hest answer to your question, for it 
came from General Jachson himself. Here it is : 

From the '■' Washington Globe." 

"the president's proclamation. 

" The editors of the Richmond Enquirer and of the Ps- 
tershurg Intelligencer, in appealing to the fearless, honest, 
disinterested patriotism, which dictated the Proclamation, 
for an interpretation of those points in which it has 
suffered misconstruction, evinces the just estimation in 
which they hold the character of the President. Oracu- 
lar silence and mystery with regard to his official docu- 
ments, or Executive acts, form no part of General Jack- 
son's policy. As Chief Magistrate, he does not entertain 
a thought which he would hide from the American people. 
He, Avho, from youth to age, has borne his life in his 
hand, ready to offer it up at any moment in defence of 
his country, now carries his heart as openly towards 
those, in whose service it is, and lias ever been, so affec- 
tionately devoted. With him, dignity of station is nothing. 
He does not alloAV the ceremonies of office — the outworks 
which are everywhere thrown round the Chief Magis- 
tracy — to separate him from his fellow-citizens. With a 
wise man of another age, he thinks that ^jplain and 



Col. X.] JACKSON'S EXPLANATION. 463 

round dealing is the honor of mans nature — and tlie 
charm of existence to liim is the consciousness of doing 
his duty — and the highest distinction is only vakied, as 
it evinces the pubhc confidence and a proper appreciation 
of his motives. Nothing, therefore, gives him more pain 
than the misconstruction to which the opinions expressed 
in his Proclamation have been subjected, and nothing, 
we are sure, will give him more pleasure, than to find, 
when properly understood, that they meet the approba- 
tion of the enlightened Republicans, the friends of the 
Union and State Rights, upon whose principles he has 
uniformly acted, throughout his public life. 

" With these preparatory remarks, we proceed to the 
reply, which we are autliorlzed to give, to the inquiries 
of the editors of the Richmond Enquirer and- Petersburg 
Intelligencer. 

" The impression that the President had given evi- 
dence of a ^ dereliction from his 'princij)les in '■ those j)as- 
sages which relate to the great question of the origin and 
character of our Federcd Comimct,' would be fully sus- 
tained, if those passages warranted the interpretation 
given by Dr. Cocke in the Resolution submitted by him 
to the Senate of Virginia. That Resolution assumed that 

it was ^SET FORTH IN THE LATE PrOCLAIMATION OF THE 

President of the United States, that the Federal Con- 
stitution RESULTS FROM THE PEOPLE IN THE AGGREGATE, 

AND NOT FROM THE States,' etc., and from this assump- 
tion, the Resolution goes on to infer, that 'this theory 
OF OUR Government would tend, in practice, to the 
most disastrous consequences, giving a minority of 
States, having a majority of population, the control 
OVER the other States,' etc. This is the interpreta- 
tion of the expression of the President's Proclamation, 
arid ihe implication of consequences, which has given the 



464: CONSTITUTIONAL VIEW OF THE WAR. [Yol. 1. 

alarm to many of the sincere friends of State Rights, who 
have considered the doctrine thus promulgated, as the 
doctrine of the old Federal Party. If the interj^retation 
were true, we would not hesitate to admit the justice of 
the censure. * * But we assert, autlioritatively, that 
the inferences made by Mr. Cocke are totally repugnant 
to the opinions of the President, and the views he meant 
to inculcate by the passage in the Proclamation, from 
which they are drawn; and these deductions were 
repelled, in this print, under the direction of the Presi- 
dent, the instant he was ajoprized they had assumed 
the shape of a Resolution in the Senate of Virginia. The 
difficulty in the minds of the editors of the Richmond 
Enquirer and Petersburg LiteUigencer, arises from the 
same passage in the Proclamation. We have, therefore, 
we hope, only to recur to them and give the sense in 
which they were intended by the President, to give per- 
fect satisfaction in relation to the principles he entertains. 

" The first passage, to which we are referred in the 
articles we quote from the Iliclimond Enquirer and Pe- 
tershurg Intelligencer, is as follows : 

^' * The people of the United States formed the Consti- 
tution, acting through the State Legislatures in making 
the Compact, to meet and discuss its provisions, and act- 
ing in separate Conventions, where they ratified those 
provisions; but the terms used in its construction, show 
it to be a Government in which the people of all the 
States collectively are represented.' 

" This is not theory, it is simple history, — but the 
phraseology, like that of the Constitution itself, which 
it copies verbatim in the leading member of the sentence , 
has been subjected to various interpretations. But the 
President, in saying that ' The people of the United States 
formed the Constitution,' although he used the very Ian- 



Col. X.] JACKSOX'S EXPLANATION. 4^5 

guage of the Constitution itself, did not leave it open to 
the construction, which the latitudinarian party have 
put upon its terms. He followed up the general de- 
claration, by particularizing, that the Constitution origin- 
ated in a Compact, that the Compact was the offspring 
of the people of the several States, acting through their 
respective State Legislatures, and further, that t];e 
Constitution or Government, founded in this CompaC, 
received its sanction from the people of the several 
States, acting through independent separate State Con- 
ventions, to ratify its provisions. With such precise 
definite and positive ascription of the Constitution, in 
its origin, to a Compaet among the several State-'i, as the 
organized agents of several communities of people, and 
again making the obligatory sanction of the instrumeni, 
as derived from the same mdependent communities, depend 
on its ratification in separate Conventions, it would seem 
that the idea of its being the work of the whole people, 
in ^ fJie aggregate or united iii one hodi/,^vtis absolutely 
precluded. Indeed, as we said befoie, in commenting 
on Dr. Cocke's Resolution, the simple language of the 
Constitution in proclaiming its origin in its first words, 
^We, the people of the United States,' 'do ordain 

AND ESTABLISH THIS CONSTITUTION FOR THE UnITED 

States op Amef"~'\,' does, of itself, imply, what is so 
precisely specified in the added explanation of the Pro- 
clamation. It excludes, by its terms, the idea of a 
people embodied in a Consolidated Government, Ijy 
describing them as composing different ' States,' and by 
speaking of the * States'' as ' united,' it repels the idea that 
the Union intended, is that of Hhe pjeople in the aggre- 
gate,' but of States as forming separate communities. 
The close of the preamble to the Constitution (which we 
have quoted above, in connection with its first \vuru.>) 
30 



4:Q^ CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

preserve the same idea. The Constitution is declared to 
be established, not for an aggregate people, but ^for the 
United States of America.' 

" The interpretation, forced by the Kesolutions, to 
which we have referred, on the Proclamation, in spite of 
its explanations, is precisely that which the friends of a 
Consolidated Government have attempted to force on the 
Constitution itself. If this were admitted, the conclusion 
drawn from it, that it would give ' to a minority of 
States, having a majority of the popidation, a control 
over the other States,' w^ould inevitably follow. * * * 
While the Proclamation thus recognizes the Constitution 
us the creature of the people of the States severally, and 
as only susceptible of change, through the agency of 
' two thirds of the States' in proposing amendments to be 
effectuated only by the ratification of three fourths of 
the States, it is difficult to conceive how any one could 
infer, from its doctrines, that it concedes to ^a minority 
of States having the majority of population,' absolute sway 
over the Constitution and Government. 

''The only other difficulty to which we are referred as 
requiring explanation, by our friends of the Riclimond 
Enquirer and Petersburg Intelligencer, will be found in 
the close of the following passage, which speaks of 'the 
unity of our political character' '^' * * It would be 
sufficient here, again, to observe, that it is history which 
speaks in this passage, and not the President. The fiicts 
are indubitably as he states them. And it is only by 
confounding the unity, which is derived from a Confed&- 
racy among the Status (making them, to a certain extent, 
'one Nation'), with the idea of a consolidation of all 
power in the Federal Government, that an objection is 
created. 'The unity of our political character,' here 
spoken of, it is expressly said, is not intended to denote 



Col. X.] JACKSON'S EXPLANATION. 467 

*an undivided Sovereigidy,' or cudhority in the General 
Government. On the contrary, the text shows that it 
only refers to that special delegcded autliority which is 
vested in the Constitution out of the powers belonging to 
the several State communities, united in one common 
Government for the purpose of establishing a National 
character, and National relations with the other Nations 
of the world. And as it was especially the sccpe of 
the Constitution, to give unity to our political character 
in its exterior aspect, and to confer upon tlie Govern- 
ment ail the attributes of Nationality, in regard to 
Foreign powers, it is strange that jealousy should be 
excited by the use of terms pointing out this design, 
or by references to various periods of our history, to 
prove that, in this respect, a connection has always ex- 
isted among the independent communities composing the 
Confederacy. * '•' "" We were a Nation under the 
Articles of Confederation, however feeble the means of 
the National authority then to bring the energies of the 
several States to act in unison — and we are, surely, not 
less a Nation, now that Government has been established 
to form a more perfect Union, endowed with all the facul- 
ties which can constitute us a Nation in our relcdions ivilli 
Foreign powers. * ''' * The Proclamation, then, in the 
passage objected to, has merely spoken the facts of his- 
tory — tlie language of the Constitution, and of the Declci- 
ration of Independence. There is no speculative opinion 
advanced — no theory proposed. And we have endeavored 
to show, that nothing in these generalities tended, in the 
slightest degree, to justify the inferences drawn from 
them, and which have been substituted as the principles 
of the Proclamation. Bat we are authorized to he more 
exjilicit, and to say p)0sitively, that no part of the Procla- 
mation was meant to countenance princip)les wIucJl hacc 



468 CONSTITUTIONAL VIEW OF THE WAE. [Vol. 1. 

heen ascribed to it. 0)i the contrary., its doctrines, if con- 
strued in the sense they loere intended, and carried oat, 
inculcate that the Constitution of the United States is 
foi^nded on Compact — that this Compact derives its ohJi- 
galion from the agreement, entered irdo hy the people of 
each of the States, in their j)oIitical capacity, icith the 
people of the other States — that the Constitution, which 
is the offspring of tliis Compact, has its sanction in the 
ratification of the people of the several States, acting in 
the capacity of separate communities — that the majority 
of the people of the United States, in the aggregate, have 
no power to alter the Constitution of the General Gov- 
ernment, but that change, or amendment can only be 
proposed in the mode pointed out in the Constitution, 
and can never become obligatory unless ratified by the 
people of three fourths of the States through their respec- 
tive Legislatures or State Conventions. * * * That 
in the case of a violation of the Constitution of the United 
States, and the usurpation of poioers not granted hy it on 
the part of the functionaries of the General Government, 
the State Governments liace the right to interpose and arrest 
the evil, ttpon the j)^'i^fci])Je^s which icere set forth ifi the 
Virginia Resolutions q/'1798, against the Alien and Sedi- 
tion Laws — and finally, that in extreme cases of oppres- 
sion (every mode of Constitutional redress having been 
sought in vain), the right resides with the people of the 
several States to organize resistance against such oppres- 
sion, confiding in a good cause, the favor of heaven, and 
the spirit of freemen, to vindicate the right. 

" We beg leave here to submit, in aid of our own, an 
exposition which touches the points involved in the con- 
troverted passages of the Proclamation, and which re- 
ceived the sanction of the President, at the threshold of 
the controversy that led to the promulgation of that 



Col. X-l JACKSON'S EXPLANATION. 469 

paper. During the progress of the debate on Foot's Keso- 
lutions, the editor of this print (who was then connected 
with a press in Kentucky, which sustained the principles 
of the Republican party), received from the Postmaster 
General the speech delivered by Mr. Livingston, accom- 
panied by a letter, saying, that the views contained in 
it were sanctioned by the President; and might bo con- 
sidered as exhibiting the light in which his administra- 
tion considered the .subject under debate. The following 
extracts from that speech will serve in illustrating the 
principles on which the President then took his stand, to 
explain the more condensed view given of them in his 
Proclamation." 

Reference is made in this explanation to certain ex- 
tracts from the speech of Mr. Livingston, in the Senate, 
in the debate on Foot's Resolutions, in 1830. The ex- 
tracts, published by the Globe, I have never seen. The 
explanation I have read is a republication from the Globe, 
in the Augusta Constitutionalist, lltli Oct., lSo3. The 
doctrines of that whole speech, however, it was said, met 
the approval of General Jackson, at the time it w^as de- 
livered. Here is that speech, in Supplement to Mless 
Register, vol. xxxviii. I call your special attention to 
these portions of it. 

"I now approach," said Mr. Livingston, "a graver 
subject; one, on the true understanding of which the 
Union, and of course the happiness of our country, de- 
pends. The question presented is that of the true sense 
of that Constitution which it is made our first duty to 
preserve in its purity. Its true construction is put in 
Joubt — not on a question of power, betw^een its several 
departments, but on the very basis upon which the whole 
rests; and which, if erroneously decided, must topple 
down the fabric, raised with so much pain, framed with 



470 CONSTITUTIONAL YIEW OF THE WAR [Vol.1. 

SO much wisdom, established with so much persevering 
lal.)or, and for more than forty years the shelter and pro- 
tection of our liberties, the proud monument of the 
patriotism and talent of those who devised it, and which, 
we fondly hoped, would remain to after ages as a model 
for the imitation of every nation that wished to be free. 
Is that, sir, to be its destiny ? The answer to that ques- 
tion may be influenced by this debate. How strong the 
motive, then, to conduct it calmly ; when the mind is not 
heated by opposition, depressed by defeat, or elate with 
fancied victory ; to discuss it with a sincere desire, not to 
obtain a paltry triumph in argument, to gain applause by 
a tart reply, to carry away the victory by addressing the 
^lassions, or gain proselytes by specious fallacies, but, with 
a mind open to conviction, seriously to search after truth, 
earnestly, when found, to impress it on others. What 
we say on this subject will remain ; it is not an every 
day question; it will remain for good or for evil. As 
our views are correct or erroneous ; as they tend to pro- 
mote the lasting welfare, or accelerate the dissolution of 
our Union ; so will our opinions be cited, as those which 
placed the Constitution on a firm basis, when it was 
shaken ; or deprecated, if they should have formed doc- 
trines which led to its destruction. '•' '=' * The States 
existed hefore the Constitution : thejj j^arted only loltli such 
Ijoiuers as are specified in that instrument, ; tliey continue 
still to exist, with all the 'powers they have not ceded, 
and the present Government, itself, tvoidd never have 
gone into operation, had not the States, in their political 
capacity, consented. That consent is a Compact of 
each one loitli the lohole, not (as has been argued in 
order to throw a kind of ridicule on this con^dncing part 
of the argument of my friend from South Carolina), with 
the Government which was made by such Compact. It 



Col. X.J JACKSON'S EXPLANATION. 471 

is difficult, therefore, it would appear, with all these clia- 
racters of a Federative nature, to deny to the present 
Government the description of one founded on Com]_xict, 
to loliicli eacli State was a 'party ; and a conclusive proof, 
if any more were wanted, would be in the fact, that the 
States ado]3ted the Constitution at different time-s, and 
many of them on conditions which were afterwards com- 
plied with by amendments. If it were strictly a popular 
Government, in the sense that is contended for, the mo- 
ment a majority of the people of the United States had 
consented, it would have bound the rest ; and yet, after 
all the others, except one, had adopted the Constitution, 
the smallest still held out, and if Rhode Island had not 
consented to enter into the Confederacy, she would, per- 
haps, at this time, have been unconnecied with us. •'' ••' * 
I place little reliance on the argument, which has been 
mostly depended on, to show that this is a popular Gov- 
ernment. I mean the preamble ; which begins with the 
words, ^ We, the people.' It proves nothing more than 
the fact, that the people of the several States had been 
consulted, and had given their consent to the instrument. 
To give these words any other construction, would be to 
make them an assertion directly contrary to the fact. 
We know — and it has never been imagined, or asserted, 
that the people of the United States, collectively, as a 
whole people, gave their assent, or were consulted in that 
capacity — the people of each State ivere consulted to 
know whether that State would form a part of the United 
States, under the Articles of the Constitution, and to that 
they gave their assent, simply as citizens of that State. 

" It is a ComjKwt, hy ivhicJi the 2^eople of each State 
have consented to take from their oion Legislatures some of 
the powers they had conferred upo?i them, and to transfer 
them, with other enumerated powers, to the Government of 
the United States, created hy that Compact. =^ ^ * 



472 CONSTITUTIONAL VIEW OF THE WAE. [Vol.1. 

" Although, in my opinion, in every case which can 
lawfully be brought within the jurisdiction of the Su- 
2)reme Court, that tribunal must judge of the Constitu- 
tionality of laws on which the question before them 
depends, and its decrees must be final, whether thc^y 
affect State rights or not; and, as a necessary conse- 
quence, that no State has any right to impede or prevent 
the execution of such sentence; yet, / am far from 
thhiking tliat this Court is created an umpire to judge he- 
tween the General and State Governments. I do not see 
it recorded in the instrument, but I see it recorded that 
every right not given is retained. In an extreme case 
that has been put, of the United States declaring that a 
particular State should have but one Senator, or should 
be dejDrived of its representation, I see nothing to oblige 
the State to submit this case to the Supreme Court ; on 
the contrary, I see, by the enumeration of the cases and 
persons which may be brought within their jurisdiction, 
that this is not included; in this, the injured State 
would have a right at once to declare that it woidd no 
longer he hound hij a Compact which had heen tints grossly 
violated^ 

The authoritative explanation, by General Jackson, of 
the doctrines of his Proclamation, which I have just read, 
and these parts of the speech of Mr. Livingston, which, 
it was asserted, as we have seen, met his entire approval, 
clearly and heyond douht show that General Jackson held 
the Constitution to be a Compact hetween States, and that 
he adhered to the old Republican creed of 1798-99. He 
was express in his injunction that it sliould be made 
known that he held to the right of State interposition 
in certain cases, upon the principles of the Virginia Reso- 
lutions of 1799. 

From this speech of Mr. Livingston it also appears that 



Col. X.] JACKSON'S POSITION AS EXPLAINED. 473 

General Jackson did not mean, by any tldng lie said in 
the Proclamation about the Supreme Court of the United 
States, to be understood as holding, that that Court had 
any Constitutional jurisdiction over liolltical questions, 
or such as involved the reserved rights of the States. 
Mr. Livingston is explicit on this point. He says that 
the Supreme Court is not an umpire between the States 
and General Government. In this, he agrees entirely with 
Judge Eibb. General Jackson, in his Proclamation on 
this subject, must have meant nothing more, therefore, 
than that the United States Judiciary w^as clothed with 
power to decide the Constitutionality of the Tariff laws, 
as between citizens, in cases made, so long as the State 
was a member of the Union. That was the case he was 
addressing the country upon. But Mr. Livingston ex- 
pressly says, that, in case of a gross violation of the Con- 
stitution, where the matter cannot be brought before that 
Court, that the State would no longer be bound by the 
Compact. His position, in this respect, was the same as 
that of Mr. Webster, at Capon Springs, wdien he said, " a 
bargain cannot be broken on one side and still bind tlie 
other side." 

Neitiier General Jackson, therefore, nor any thing in 
his Proclamation, can be brought up as authority against 
what I claimed as an indisputably established conclusion. 
That was, that the Government of the United States is 
founded upon Compact between States, and is therefore 
strictly Federal in its character, or, in other words, that 
it is what Washington styled it, a Confederated Republic. 

No better or stronger proof need have been adduced 
to establish this conclusion than the Proclamation itself, 
with the explanation that was given afterwards. If with 
tliis alone more had been called for, so far as General 
Jaok son's authority goes, the material could be easily 



474 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

and abundantly supplied. His whole administration 
furnishes it. His numerous vetoes, and the principles 
upon which he put them, show him to have been a Re- 
publican of the old school. His almost every message, 
from his inaugural to his Farewell Address, abounds 
with arguments to prove, if it were necessary, that 
this Government, in his opinion, is a Confederated Re- 
public. In the very second paragraph of his first inau- 
gural, he speaks of the Constitution as " the Federal 
Constitution." Further on in the same, he says : "In 
such measures as I may be called on to pursue, in regard 
to the rights of the separate States, I hope to be ani- 
mated by a proper respect for tliose Sovereign memhers 
of oiC)' Union; taking care not to confound the powers 
they have reserved to themselves, with those they have 
granted to the Confederacy."* 

The same sentiments pervade all his messages for the 
eight years of his ever memorable administration, and 
in his Farewell Address he is no less distinct and em- 
phatic. Listen to his parting words to the people of the 
United States : 

"It is well known," says he, ''that there have always 
been those among us, wdio wi&h to enlarge the powers of 
the General Government ; and experience would seem to 
indicate that there is a tendency on the part of this 
Government to over-step the boundaries marked out for 
it by the Constitution. Its legitimate authority is abun- 
dantly sufficient for all the purposes for which it was 
created ; and its powers being expressly enumerated, 
there can be no justification for claiming any thing be- 
yond them. Every attempt to exercise power beyond 
these limits should be promptly and firmly opposed. For 

* Statesman'' s Ifanual, vol. ii, p. 695. 





Engraved t>y A.B. Waiter, J=ni 



Col. X.j JACKSON'S FAREWELL ADDRESS. 475 

one evil example will lead to other measures still moie 
mischievous; and if the principle of constructive powers, 
or supposed advantages, or temporary circumstances, 
shall ever be permitted to justify the assumption of a 
power not given by the Constitution, the General Gov- 
ernment will, before long, absorb all the powers of Legis- 
lation, and you will have, in effect, but one Consolidated 
Government. From the extent of our country, its di- 
versifiid interests, different pursuits, and different habits, 
it is too obvious for argument, that a single Consolidated 
Government would be wholly inadequate to watch over 
and protect its interests; and every friend of our free 
institutions should be always prepared to maintain unim- 
paired, and in full vigor, the rigJits and Sovereigntij of the 
States, and to confine the action of the General Govern- 
ment strictly to the sphere of its appropriate duties. "'•■' 

How wise, patriotic, and even prophetic, were these 
admonitions of the Hero of New Orleans, and the Sage 
of the Hermitage ! He was, indeed, both hero and sage ! 
In him was presented the rare combination of botli 
military and civic attainments of a very high order. 
Highest in eminence above all others of this class in the 
annals of the world stands Washington ! Jackson ap- 
proached as near this great unapproachable model of the 
general and statesman combined, as perhaps any ever 
will or can. He left the impress of his ideas deeply 
fixed upon the times in which he lived. And no more 
important admonition did he ever give his countrymen 
than that in the closing part of the extract from his 
Farewell Address I have just read. This, with all the 
Boleranity of dying declarations, may be received as the 
Btrongest evidence of his opinions that ours is a Confede- 



StatesmmVs Manual, vol. ii, p. 952. 



476 CONSTITUTIONAL V^IEW OF THE WAR. [Vol.1. 

racy of Sovereign States, and that our liberties, as well 
as the preservation of the Union, which was so dear to 
him, depend upon their preservation as such ! His last 
parting words to his countrj-men were, to he prepared 
to maintain unimpaired, and in full vigor, the Sovereignty 
of the States ! 

May T not, then, upon his authority, again ask if the 
conclusion, before stated, that the Constitution is a Com- 
pact between Sovereign States, is not indisputably esta- 
blished ? 

Major Heister. Waiving that point, I do not yet see 
that the right of a State to secede from the Union, in 
disregard of her obligations under the Compact, follows 
that conclusion. 

Mr. Stephens. That is another question. We must 
settle one thing at a time. Do you all now give it up 
that the Constitution is a Compact between Sovereign 
States ? All being silent we will then take that to be an 
established truth, and proceed a step further. 



COLLOQUY XL 

THE GREAT TRUTH ESTABLISHED THAT THE CONSTITUTION 18 A COMPAtT 
BETWEEN SOVEREIGN STATES — THE GOVERNMENT OF THE UNITED STATES 
IS STRICTLY A FEDERAL GOVERNMENT — EACH STATE FOR ITSELF HAS TUB 
RIGHT TO JUDGE OP INFRACTIONS AS WELL AS THE MODE AND MEASURi: OP 
REDRESS — THE RIGHT OP A STATE TO WITHDRAW FROM THE UNION Ul'ON 
BREACH OP THE COMPACT BY OTHER PARTIES TO IT SPRINGS FROM THE 
VERY NATURE OP THE GOVERNMENT — THE COMPACT WAS BROKEN BY 
THIRTEEN STATES OP THE UNION — WEBSTER, STORY, TUCKER, RAWLE, DB 
TOCQUEVILLE, WADE, GREELEY AND LINCOLN UPON THIS RIGHT TO WITH 
DRAW OR SECEDE IN SUCH CASE. 

Mr. Stephens. We are then, it seems, by the assent of 
all, brought to the conclusion, that the Constitution of the 
United States was formed by separate, distinct, and 
Sovereign States. This is the conclusion to which we 
are all, however wiiUngly or reluctantly, compelled to 
come at last, not only by the testimony of witnesses of 
the highest order, and by the decisions of the judicial 
tribunal of the highest authority, the Supreme Court of 
the United States, Chief Justice Marshall at Its head, 
but by the everlasting records themselves, by all the 
great facts of our history, which can never be obliterated 
or effaced. 

We have seen that the Union existing between these 
States, anterior to the formation of the new Constitution, 
was a Compact, or as Judge Marshall expressed it, noth- 
ing but " a league" between Sovereign States. 

We have seen that in remodelling the Articles of the 
old Confederation, it was not the object, or design of any 
of the parties, to change the nature or character of that 

477 



478 CONSTITUTIONAL VIEW OF THE WAK. [Vol. I. 

Union ; but only to make it more perfect, by an enlarge- 
ment of the delegation of powers conferred upon the 
Government thereby established with such changes in its 
organic structure, touching the mode and manner of 
exercising them, as might be thought best to attain the 
object of their delegation. 

We have also seen, both by the instrument itself, and 
by the understanding of all the parties at the time ; that 
this was what was done by the adoption of the pret-^eiit 
Constitution, and nothing more. In other words we 
have seen, and come to the conclusion from a review of 
all the facts, that the Constitution, as the Articles of 
Confederation, is a Compact between "the Sovereign 
members of the Union" under it, as General Jackson 
styles the States. 

With these essential points first settled, beyond dispute 
or question, we are now prepared to go a step further 
and approach the end of our immediate and important 
inquiry, touching the nature and character of the 
Government, so formed and constituted, and to see clear- 
ly where, under it. Paramount or ultimate Sovereignty 
necessarily resides. 

That the Government of the United States is a Con- 
federated Republic, or Confederac}^, of some sort, and not 
a Consolidated Government, is now no longer a matter 
of investigation or question. Whatever other character- 
istics, peculiar or anomalous, it possesses, it is beyond 
doubt, cavil, or dispute. Federal in its nature and cha- 
racter. 

That it presents, in its structure, several new features, 
wholly unknown in all former Confederacies of which the 
world's history furnishes examples, all admit. This was 
well understood at the time of its formation, as well as 
ever since. No exactly similar model is to be found 



OoL. XI.] NEW IDEA IN THE FEDERAL SYSTEM. 179 

amongst all the nations of the earth, or in the annals of 
mankind, in the past or present. But we have seen the 
model which was in the minds of its authors at the time 
it was framed, and Avhich formed the basis of their con- 
ceptions and designs. That Avas the model of a Confeder- 
ated Republic given by Montesquieu. This model was 
not only in the minds of the Convention which framed 
the Constitution, but in the minds of all the Conventions 
of the States which adopted it. This has been shown 
from the proceedings of those bodies. That model ex- 
hibited several small Republics so united into a larger one, 
for foreign and inter State purposes, as to present them- 
selves in joint Combination to the world, as one Nation, 
while as between themselves eat;ii one retained unim- 
paired its own inherent, innate Sovereignty and Nation- 
ality.* This was the ideal before all the States of this 
Union, at the time of the formation of the Constitution. 
According to this model, which was as far as the wisdom 
of men then had gone in forming Governments for the 
preservation of free institutions, and to prevent the 
principle of universal Monarchical Rule, the action of the 
larger and conventional State or Nation so, formed for 
external or foreign purposes, was confined in its internal 
operations exclusively to the integral members of the 
Union or Confederation. No power was conferred upon 
this joint agent of all to interfere, in any way or under 
any circumstances, with the individual citizens of the 
separate Republics. 

But a new idea had for sometime been iii embryo. It 

was then struggling into birth. Jefferson's brain had 

first felt the impulse of its quickening life. The framers 

^f the Constitution saw its star, as the Avisc men of ths 



* Monte scfuiev^ vol. i, Book ix, ch. i, p. 154. 



480 CONSTITUTIONAL VIEW OF THE WAR. [Vol. T 

East saw the star of Bethlehem. They did homage to it, 
even in the manger, where it then lay in its swaddlings, 
as the political Messiah just born for the regeneration of 
the down trodden Peoples of the Earth. That idea was 
to apply a new principle to the model before them, to im- 
prove upon it by a division of its Powers, and by extending 
its operations, without changing the basis upon which it 
was formed. It was simply for these separate Republics 
to empower their joint agent, the artificial or conven- 
tional Nation of their own creation, to act, in the dis- 
charge of its limited functions, directly upon their citizens 
respectively, and to organize these functions into separate 
departments. Executive, Judicial and Legislative, as their 
own separate systems were organized. This, it is true, 
was a new and a grand development in the progress of 
the science of Government, which, of all sciences, unfor- 
tunately for mankind, is the slowest in progress. 

But this was the idea — this the design, and this was 
just what was done. 

The great object was to obviate the difficulties and the 
evils, so often arising in all former Federal Republics, of 
resorting to force against separate members, when dere- 
lict in the discharge of their obligations under the term.T 
and covenants of their Union. Difficulties of this sort 
had already been felt under their own Confederation, 
which they were convened to remedy. Some States had 
failed to meet the requisitions upon them for their quota 
of taxes to pay the common expenses, and to sustain the 
common public credit. By the laws of Nations, the Con- 
federates of States thus derelict, had the clear right to 
compel a fulfilment of their solemn obligations, though 
the very act of doing it ^70uld necessarily have put an 
end to the Confederation. The question of coercion in 
the collection of unpaid requisitions, on the part of some 



Cni,. XL] NEW IDEA IN THE FEDERAL SYSTEM. 481 

of the States, had been raised during the old Confedera- 
tion. Jefferson saw that this would be necessary if that 
system could not be amended. All, however, saw that a 
resort to force, in such cases, w^ould result in war which 
might become general, and the loss of the liberties of all 
might, perhaps, ensue. This newly born idea presented 
an easy solution of the whole vexed question. It wos 
adopted, by the Parties agreeing in the Compact itself, 
that in the collection of the taxes for the common defence 
and general welfare, and in some other cases, this com- 
mon agent of all the members of the Confederacy, should 
act directly upon the individual citizens of each, within 
the sphere of its specific and limited powers, and with a 
complete machinery of functions, for this purpose, similar 
to their own. This is the whole of it. 

It is this exceedingly simple, but entirely new feature, 
in Confederated Republics, which has so puzzled imd 
bewildered so many in this as in other countries, as to 
the nature and character of the United States Govei-n- 
ment. It is this feature, in the American plan, which 
struck the learned and philosophic De Tocqueville, who, 
of all foreigners, seems most deeply to have studied our 
institutions, and to have become most thoroughly imbued 
with their spirit and principles. 

On this point he says : 

" This Constitution, which may at first be confounded 
with the Federal Constitutions which have preceded it, 
rests, in truth, upon a wholly novel theory, which niayl)e 
considered as a great discovery in modern political science. 
In all the Confederations which preceded the American 
Constitution of 1789, the allied States, for a common 
object, agreed to obey the injunctions of a Federal Gov- 
ernment; but they reserved to themselves the right of 
ordaining and enforcing the execution of the laws oi tbe 

31 



482 CONSTITUTIONAL VMEW OF THE WAR. [Yol. I. 

Union. The American States, wiiich combined, in 1780, 
agreed, that the Federal Government should not only 
dictate, but should execute its own enactments. In both 
cases, the right is the same, but the exercise of the right 
is different; and this difference produced the most mo- 
mentous consequences."* 

In all this he is perfectly right. The principle thus 
introduced was a new one. It was unknown to the 
old world. Unknown to Plato, Aristotle, Cicero, Grotius, 
Puffendorf, or Montesquieu. It was, indeed, a grand dis- 
covery. The honor, the glory of this discovery, was re- 
served for this Continent, and for those who had first 
proclaimed the great truth that all "Governments de- 
rive their just powers from the consent of the governed." 
From this simple discovery, did, indeed, follow the most 
momentous consequences. From it sprang that unparal- 
leled career of prosperity and greatness w^hich marked our 
history under its beneficent operations for nearly three 
quarters of a century ! 

These momentous consequences in rapid growth and 
development, and the unsurpassed happiness and pros- 
perity, resulted from this simple, but wonderful improve- 
ment made by the Fathers, in 1787, upon Montesquieu's 
mode] of a Confederated Republic. This new feature, 
however, in the workmanship of their master-hands has 
been w^ at has caused so much confusion in the minds of 
many as lo tlie nature and character of the Government. 
They do not seem to understand how this new feature is 
consistent with a stiietly Federal System. The difficulty 
with them seems to arise entirely from the fact, that 
none such ever existed before. They have no specific 
iiame for this new development or discovery in the science 



De Tocquevi lie's Democracy in America, vol. i, p. 198. 



Col XI.l NO SPECIFIC NAME FOR THIS NEW IDEA. 483 

of Government. Hence the great variety of sentirnents 
in the several State Conventions, some caUing it a con- 
sohdated Government, and some of its friends styhng it 
a mixed Government — partly Federal and partly Nar 
tional — Federal in its formation and National in its 
operation. Of this class was Mr. Madison. And hence, 
also, some in later times have st^ded it a Compositi\ e 
Government.* 

A little analysis and generalization may enable us to 
bring order out of this confusion. In one sense it is a 
National Government. In this, however, there is nothing 
yicw or 2)ecLdiar in the Government established by the 
New Constitution. In the same sense in which it is 
National, and none other, was the old Confederation 
National. The United States, under that, we have seen 
was called and properly called a Nation, for certain pur- 
poses. For the same purposes, and in the same sense, and 
none other, may they now properly be called a Nation. 
Their present Government is National in the same 
sense in which the Governments of all Confederated Re- 
publics are National, and nonfe otber. The very object 
in forming all Confederated Republics is to create a oieAc 
and an entirely artificial or conventional State or Nation, 
which springs from their joint Sovereignties, and which 
has no existence apart from them, and which is but the 
Corporate Agent of all those Sovereignties creating it, and 
through which alone they are to be known to Foreign 
Powers, during the continuance of the Confederation. 
This Conventional Nation is but a Political Corporation. 
It has no original or inherent powers whatever. All its 
poAvers are derived — all are specific — all are limited — all 
are delegated — all may be resumed — all may be forfeited 

* Wieaton'>s Elements of International Law, p. 12. 



484 CONSTITUTIONAL VIEW OP THE WAR. [Vol. I, 

by misuser, as well as non-user. It is created bv tlie 
separate Kepublics forming it. They are the Creators. 
It is but their Creature — subject to their will and con- 
trol. They barely delegate the exercise of certain Sove- 
reign powers to their common agent, retaining to them- 
selves, separately, all that absolute, ultimate Sovereignty, 
by which this common agent, with all its delegated 
powers, is created. This is the basis, and these are the 
principles, upon which all Confederated Republics are con- 
structed. The new Conventional State or Nation thus 
formed is brought into being by the will of the several 
States or Nations forming it, and by the same will it may 
cease to exist, as to any or all of them, while the separate 
Sovereignties of its Creators may survive, and live on 
forever. 

A Government so constructed, being itself founded on 
Compact between distinct Sovereign States, is necessarily 
Federal in its nature, while it at the same time gives one 
national character and position amongst the other Powers 
of the world, to all the Parties constituting it ! In this 
sense, all Confederated Governments are both Federal 
and National. The Government of the United States is 
no exception to the rule. In this sense, Washington, 
Jefferson, and Jackson, spoke of the United States under 
the Constitution as a Nation, as well as a Confederated 
Republic. In this sense, it is properly styled by all a 
Nation. This was the idea symbolized in the motto, " E 
plarihns uimm''^'' One from many. That is, one State 
or Nation — one Federal Re23ublic — from many Republics, 

* "E Pluribus Unum, [L.] One composed of many ; the motto of 
the I^'nited States, consisting of many States confederated." — Noah 
Webster, LL. D. 

"E Pltjrip>us Unum, [L., one of mamj.] The motto of the United 
States ; — the allusion being to the formation of one Federal Government 
out of several independent States."— Joseph E. "Worcester, LL. D. 



Col. XI.l FEDJiRAL SYSTEM UNCHANGED BY IT. 485 

States, or Nations. This is what is meant by the Nation 
when properly applied to the United States. It is not 
tlie whole people, in the aggregate constituting one body 
united on the principles of a social Compact, but that 
Conventional State which springs from and is dependent 
upon the several State Sovereignties creating it, as in all 
other cases of Confederated Republics. The bare fact 
that it operates on the individual citizens of the several 
States, in specified cases, and has in its organization the 
requisite functions for this purpose, does not change, in 
the least, the nature of the Government, if this arrange- 
ment is agreed upon in the Compact between the Sove- 
reign Parties to it. That depends entirely upon the 
great fact which we were so long in establishing, that the 
Government itself, with all its powers as well as ma- 
chinery, was founded upon Compact betvv'^een separate and 
distinct Sovereign States. If this be so, as has been con- 
clusively established, then the Government, so constructed, 
must of necessity be Federal, and purely Federal, in its 
character. This character is not changed by the adoption 
of any machinery, for its practical workings, which may 
be thus agreed upon. For it is perfectly competent for 
independent and Sovereign Nations, by treaty or com- 
pact, to make any agreement they please touching the 
enforcement of such treaties, or the terms of such com- 
pacts, over the irrespective citizens or subjects, and by 
such agencies as they may please jointly to agree upon, 
without the least impairment whatever of their respect- 
ive Sovereignties. 

The great question, therefore, in this investigation was, 
is the Constitution a Compact between Sovereignties ? If 
so, the Government established by it is purely, entirely, 
and thoroughly Federal in its nature, and no more Na- 
ti^-nal in any sense than all former Federal Republics. 



486 CONSTITUTIONAL VIEW OF THE WAR. [Tol. i. 

All those features in its operations directly upon indivi- 
duals, instead of upon States, which give rise to ideas of 
Nationality, or of its being of a mixed nature, spring 
themselves from the Federal Compact. Ours, therefore, is 
a j^ure Confederated Kepublic, upon the model of Montes- 
quieu, with the new principle referred to incorporated 
into the system, without changing, in the least, the basis 
of its organization — at least, so thought the Fathers by 
whom it was established. It is true we have as yet no 
apt distinctive word in political nomenclature, by which 
to characterize this specific distinctive improvement in the 
purely Federal systsm. This only shows the barrenness 
of language. Actualities often precede nomenclature. 
And, hence, De Tocqueville, perceiving this in our system, 
said of it, tliat " the new Avord, which ought to express 
this novel thing, does not yet exist." " The human un- 
derstanding," says he, " more easily invents new things 
than new words, and we are hence constrained to employ 
many improper and inadequate expressions." No truer 
remark was ever made about the Goverrmient of the 
United States. All the difficulty or confusion on the 
subject, however, relates only to the name. It is one of 
nomenclature, and not substance. That stands out per 
fectly distinct in all its features, however unlanguaged it, 
with these features, may yet be. This want of a suitable 
name applies, also, only to its specific character, tliot 
name which will perfectly characterize its specifitc differ- 
ence from other Confederacies, ancient or modern. There 
is no difficulty as to the proper generic term applicable to 
it. That is unquestionably Federal. Its genus, with all 
the iixidents of the class, is a Federal or Confederated 
Republic. That is fixed by the fact that it is founded 
upon Compact — Confederation between distinct Sovereigr* 
Powers. 



Col. XI.l WHERE SOVEREIGNTY RESIDES. 487 

What makes any Government Federal, but the fact 
that it springs, with all its powers and functions, of what- 
ever character, from covenants and agreements between 
the Sovereign contracting parties creating it ? And is it 
not as competent for a Sovereign State to agree, that the 
Federal agent or Government shall act upon her citizens, 
in specified cases, as it is for her to agree, that the same 
agent or Government may act upon herself? may pass 
edicts of equal force and obligation upon her, which she 
is equally bound by the Compact to execute by her own 
machinery of laws? Where is the difference? What 
makes the Union between any States Federal is not the 
manner of its action, but the Fceclus, the Covenant, tlie 
Convention, the Compact upon which it is founded ! 

So much for the nature of the Government of the United 
States, and the terms by which it may be characterized. 

Where, under the system so constituted, does Sove- 
reignty reside ? This is now the great and last question. 
It must reside somewhere. It must reside, as all admit, 
vv^ith the people somewhere. Does it reside with the whole 
people in mass of all the States together, or with the 
people of the several States separately ? That is the only 
question. The whole subject is narrowed down to this : 
Where, in this country, resides that Paramount authority 
that can rightfully make and unmake Constitutions? In all 
Confederated Republics, according to Montesquieu, Vattel, 
and Burlamaqui, it remains with the Sovereign States so 
Confederated. Is our Confederated Republic an exception 
to this rule ? If so, how does it appear ? Is there any 
thing in its history, anterior to the present Compact of 
Union, that shows it to be an exception? Certainly not; 
for the Sovereignty of each State Avas expressly retained in 
the first Articles of Union. Is there then any thing in the 
present Compact itself that shows that it was surrendered 



4:88 CONSTITUTIONAL VIEW OF THE WAR. [Yol. 1. 

by them in that ? If so, where is the clause bearing that 
import ? None can be found ! Again : if it was thereby 
surrendered, to whom was it surrendered ? to whom did 
it pass? Did it pass to all the people of the United 
States ? Of course not ; for not one particle of power of 
any sort, much less Sovereignty, is delegated in the Con- 
stitution to the people of the United States. All powers 
therein delegated are to the States in their Sovereign 
character, under the designation of United States. Is it 
then surrendered to the United States jointly? Cer- 
tainly not, for one of the main objects in forming the 
Compact, as before stated, and as clearly appears from 
the instrument itself, was, to preserve and perpe+nate 
separate State existence. The guarantee to tliis effect, 
from the very words used, implies their Sovereignty. 
There can be no such thing as a 'perfect State without 
Sovereignty. It certainly is not parted with by any ex- 
press terms in that instrument. If it be surrendered 
thereby it must be by implication only. But how can it 
be implied from any words or phrases in that instru- 
ment? If carried by implication, it must be on the 
strange assumption that it is an ircident only of some 
one or all of those specific and specially enumerated 
powers expressly delegated. This cannot be, as that 
would be making the incident greater than the object, 
the shadow more solid than the substance. For Sove- 
reignty is the highest and greatest of all political powers. 
It is itself the source as well as embodiment of all 
^^olitical powers, both great and small. All proceed and 
bmanate from it All the great powers specifically and 
expressly delegated in the Constitution, such as the 
power to declare war and make peace ; to raise and 
support armies, to tax and lay excise duties, etc., are 
themselves but the incidents of Sovereignty. If thir 



Col. XL] WHERE SOVEREIGNTY RESIDES 489 

great embodiment of all powers was parted with, why 
were any minor specifications made? Why any enu- 
meration? \Yas not sucli specification or enunieratiun 
"both useless and absurd ? 

All the implications are the other way. The bare fact 
that all the powers parted with by the States were dele 
gated only, as all admit, necessarily implies that the 
greater power delegating still continued to exist. 

If, then, this ultimate absolute Sovereignty did reside 
with the several States separatel}^, as without question it 
did, up to the formation of the Constitution, and if, in 
the Constitution, Sovereignty is not parted \vith by the 
States in express terms, if, as Mr. Webster said, in 1839, 
there is not a word about Sovereignty in it, and if, fur- 
ther, this greatest of all political powers cannot justly be 
claimed as an incident to lesser ones, and thereby car- 
ried by implication, then, of course, ^vas it not, most 
clearly, still retained and reserved to the people of the 
several States in that mass of residuary rights, in the 
language of Mr. Jefferson, which was expressly reserved 
in the Constitution itself? 

It is true it was not so expressly reserved in the Con- 
stitution at first, because it w^as deemed, as the debates in 
the Federal Convention, as well as the State Conventions, 
clearly show, wdiolly unnecessary ; so general was the 
understanding that it could not go, by inference or impli- 
cation, from any thing in the Constitution ; or in other 
words, that it could not be surrendered wdthout express 
terms to that effect. The general understanding wius the 
universally acknowledged principle in public law, that 
nothing is held good against Sovereignty by implication. 
But to quiet the apprehensions of Patrick Henry, Samuel 
Adams, and the Conventions of a majority of the States, 
this reservation of Sovereignty was soon after put in the 



490 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

Constitution amongst other amendments, in plain and 
unequivocal language. So cautious and guarded were 
the men of that day that the Government had hardly 
commenced operations before all inferences that had 
been drawn against the reserved Sovereignty of the 
States, from the silence of the Constitution, in this par- 
ticular and some others, were fully rebutted by several 
amendments, proposed b}^ the States, in Congress assem- 
bled, at their first session. These amendments were pre- 
ceded by a preamble, which shows that they were both 
declaratory and restrictive in their object. Here is wdiat 
was done : — 

" The Conventions of a number of the States, having, at 
the time of their adopting the Constitution, expressed a 
desire, in order to prevent misconstruction or abuse of its 
powers, that further declaratory and restrictive clauses 
should be added : And as extending the ground of public 
confidence in the Government, will best insure the benefi- 
cent ends of its institution ; 

^'■Resolved, hy the Senate and House of Representatives of 
the United States of America, in Congress assembled, two 
thirds of both Houses concurrinG;, That the foUowinsj 
Articles be proposed to the Legislatures of the several 
States, as amendments to the Constitution of the United 
States, all, or any of which Articles, when ratified by 
three fourths of the said Legislatures, to be valid to all 
intents and purposes, as part of the said Constitution."* 

The language of one of the amendments then proposed, 
on the subject we are now upon, is as follows : " The 
powers not delegated to the United States by the Consti- 
tution, nor prohibited b}' it to the States, are reserved to 
the States, respectively, or to the people." 

• liicJcey^s Constitution^ p. 33 ; United States Statutes at Large, vol. i, p. 07. 



Col. XL] SOVEREIGNTY OF STATES RESERVED. 491 

This amendment, wliich was promptly agreed to by the 
States unanimousl}', dechires that all po'wers not delegated 
were reserved to the States respectively ; this, of course, 
includes, in the reservation. Sovereignty, which is the 
source of all powers, those delegated as well as those re- 
served. This reservation Mr. Samuel Adams said, we 
have seen hi the Massachusetts Convention, was conso- 
nant with the like reservation in the first Articles of 
Confederation. And such was the universal understand- 
ing at the time. Most of the other amendments/^= then 
proposed, were likewise agreed to by the States, but not 
unanimously. 

Can any proposition within the domain of reason be 
clearer, from all these facts, than that the Sovereignly of 
the States, that great Paramount authority which can 
rightfully make and unmake Constitutions, resides still 
with the States? Does not this declaratory amendment,- 
added to the original covenant in the Constitution, which 
provides for its own amendment, show this beyond all 
doubt or question ? Why were further amendments to 
it to be submitted to the States for their ratification 
before they could be binding, but upon the indisputable 
principle or postulate that Sovereignty, which alone has 
control of all such matters, still resides with the States 
severally ? There is, my dear sirs, no answer to this. 

The Government of the United States, however new 
some of its features are in the machinery of its opera- 
tion, is no exception to the general rule, applicable to all 
Federal Republics, as to where the ultimate absolute 
Sovereign or Paramount authority resides. According 
to that rule, in all of them, it is retained by the Partie? 
to the Compact. Such was the case in the model of 

* See Appendix D. 



492 CONSTITUTIONAL YIEW OF THE WAR. [Vol. i. 

Montesquieu. Such is the case in all Confederacies of 
this character, according to Vattel, as we have seen. 
Such is, necessarily, the case in our system, built upon 
these models. All unions of separate States, under Com- 
pacts of this sort, are founded upon the same essential 
basis. Sovereignty, with us, therefore, upon these fixed 
and indisputable principles, noio resides, as I said before, 
just where it did in 1776 — just where it did in 1778 — 
and just where it did in 1787 : that is, with the people 
of the several States of the Federal Union. This Sover- 
eignty, so residing with them, is tlie Paramount authority 
to which allci^iance is due. Alle2;iance. a word brought 
from the Old World, of Latin origin, from lujo, to bind, 
means the obligation which every one owes to that Power 
in the State, to which he is indebted for the protection 
of his rights of person and property. Allegiance and 
Sovereignty, as we have seen, are reciprocal.* " To 
whatever Power a citizen owes allegiance, that Power is 
his Sovereign." To what Power are the citizens of the 
several States indebted for protection of person and 
property, in all the relations of life, for the regulation of 
which Governments are instituted ? Certainly not to the 
Federal Government. That Government, in its opera- 
tions, has no right to interfere, in any way icliatever, with 
the citizens of the several States, but in a few exceptional 
cases ; and then, not for protection, but in the enforcement 
of laws, which the State would have been bound, by her 
plighted faith, to execute herself, had not this new feature 
been introduced into the Federal system. The Govern- 
ment of the United States, in its internal polity, is known 
to the citizens of the several States only by its requisitions 
upon individuals, instead of States, except in a very few 

* Ante, p. 25. 



OoL. XL] ALLEGIAiVCE AND SOVEREIGNTY. 493 

Bpecified cases. In its National character, it gives ample 
protection abroad. This was one of its main objects. In 
its postal arrangements, it furnishes many conveniences, 
for which it is duly paid. In these particulars, there 
is no difference between the Constitution and the first 
Articles of Confederation. But it was no part of the 
objects of either to afford protection to the citizens of the 
States, respectively, in all those relations of life which 
mark the internal polity of different States and Nations. 
These, now, as before, all depend upon the Sovereign will 
of the States. This Sovereign will fixes the status of the 
various elements of Society, as well as their rights. In 
the States, severally, remains the great right of Eminent 
Domain, which reserves to them comj^lcte jurisdiction 
and control over the rights of person and property of 
their entire population. With them remains, untram- 
melled, the power to establish codes of laws — civil, mili- 
tary, and criminal. They may punish for what crimes 
they please, and as they please, and the Government of 
the United States cannot interfere. To their own Legis- 
latures, their own Judiciaries, their own Executives, their 
own laws, established by their own Paramount authority, 
do all the citizens of all the States look for whatever pro- 
tection and security they receive, possess, or enjoj-, in all 
the civil relations of life. In all such matters as require 
that protection to which allegiance is due, the Govern- 
ment of the United States is unknown to them. 

It is true that the States did covenant, in the Constitu- 
tion, that no State should "pass any law, makiiig any 
thing but gold and silver coin a legal tender in the pay- 
ment of debts ; pass any bill of attainder, or ex i>osl 
facto law, or law impairing the obligation of contracts ;" 
but this, in no wise, changes the principle. Those provi- 
sions Avere put in by each State, to protect the riglils of 



494 CONSTITUTIONAL VIEW OF THE WAR. [Vol, I 

her citizens against the unjust legislation of other States, 
and not against her own legislation. By the Constitu- 
tion, the citizens of each State have all the privileges 
and immunities^of all the citizens of the several States, 
in their intercourse with each other. Hence, the pro- 
priety and wis;l)ni of these provisions. It is, in itself, only 
a negative protection, and such as each State provided, 
in the Compact, for the protection of her own citizens, in 
otlier States, against the acts of the other States, and not 
against their own. It was inserted from no such view as 
that tlie citizens of the several States were to look to the 
Federal Government for that protection, in any sense, 
which is the foundation of all allegiance. The guarantee 
of rights, in the amendments to the Constitution, such as 
the right to bear arms, freedom from arrest, etc., apply, 
exclusively, to the Federal Government. They were but 
bulwarks, thrown around the citadel of State Eights, to 
protect the citizens of the respective States from the ex- 
ercise of unjust powers over them by the General Govern- 
ment. They were not inserted with any view of protect- 
ing the citizens of the respective States from the action 
of their own State Governments. 

On the several State authorities, therefore, are all the 
citizens, of all the States, under our system, entirely de- 
pendent for the protection of all those civil rights and 
franchises, for which, mainly, human societies are organ- 
ized, and for which, mainlj^. Governments are instituted 
by men. To this several State autliority, when properly 
expressed, is the allegiance proper of every citizen due. 
This is his Sovereign. 

These things being so, I think I have made it very 
clearly appear, why I acted as I did, in going with my 
State, and obeying her high behest, when she i-esumed 
the Sovereign Powers sIk^ had delegated to the United 



Col. XL] RIGHTFULNESS OF SECESSION. 495 

States, by entering into a Compact of Union with them 
in 1788, and asserted her right to be a free and independ- 
ent State, which she was acknowledged to be by George 
the Third of England, in the treaty of peace, in 1783. 

Tlie rightfulness of this act, on the part of the State, 
is not now the question. We will come to that presently. 
But the question now is, was it not the duty of all her 
citizens to go with her in her solemn Resolve ? Was not 
every one bound to do so, or become guilty of incivism, 
the highest of all political offences against the society of 
which one is a member ? Would not every one, refusing 
to obey the mandate of the State, in such case have sub- 
jected himself to her laws against treason to her Sove- 
reignty ? In that case, could the United States, either de 
jure or de facto, have saved him or afforded him any 
protection whatever against the prescribed penalty? 
By the very terms of the Compact, if that was still in 
force, if he had escaped, and gone into another State, he 
would, necessarily, upon demand, have been delivered up 
to the State for trial and punishment ! But in point of 
fact, the United States had not an officer, civil or mili- 
tary, within the State. All had retired, either voluntnr 
rily or by compulsion. Not an emblem even of their 
authority was to be found within her borders. To whose 
authority then could any citizen look for any sort of pro- 
tection, but the authority of the State ? Was not obedi- 
ence both proper and due to that authority w^hich alone 
could afford proper protection, both de jure and de facto ? 

Now as to the rigldfidness of the State's thus resuming 
her Sovereign powders ! In doing it she seceded from that 
Union, to which, in the language of Mr. Jefterson, as Avell 
as General Washington, she had acceded as a Sovereign 
State. She repealed her ordinance by which she ratified 
and agreed to the Constitution and became a party to tlie 



496 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

Compact under it. She declared herself no longer bound 
by that Compact, and dissolved her alliance with the 
other parties to it. The Constitution of the United 
States, and the laws passed in pursuance of it, were no 
longer the supreme law of the people of Georgia, any 
more than the treaty with France was the supreme law 
of both countries, after its abrogation, in 1798, by the 
same rightful authority which had made it in the begin- 
ning. 

In answer to your question, whether she could do this 
without a breach of her solemn obligations, under the 
Compact, I give this full and direct answer : she had a 
perfect right so to do, subject to no authority, but the 
great moral law which governs the intercourse between 
Independent Sovereign Powers, Peoples, or Nations. Her 
action was subject to the authority of that law and none 
other. It is the inherent right of Nations, subject to this 
law alone, to disregard the obligations of Compacts of all 
sorts, b}^ declaring themselves no longer bound in any 
way by them. This, by universal consent, may be right- 
fully done, when there has been a breach of the Compact 
by the other party or parties. It was on this principle, 
that the United States abrogated their treaty with France^ 
ill 1798. The justifiableness of the act depends, in every 
instance, upon the circumstances of the case. The gene- 
ral rule is, if all the other States — the Parties to the 
Confederation — faithfully comply with their obligations, 
under the Compact of Union, no State would be morally 
justified in withdrawing from a Union so formed, unless 
it were necessary for her own preservation. Self-preserva- 
tion is the first law of nature, with States or Nations, as 
it is with individuals. 

But iji this case the breach of plighted faith was not 
on the part of Georgia, or those States which withdrew 



OoL. XI 1 RIGHTFULNESS OF SECESSION. 497 

or attempted to withdraw from the Union. Thirteen of 
their Confederates had openly and avowedly disregarded 
their obligations nnder that clause of the Constitution 
wliieh covenanted for the rendition of fugitives from 
service, to say nothing of the acts of several of them., 
in a like open and palpable breach of faith, in the mat- 
ter of the rendition of fugitives from justice. These 
are facts about which there can be no dispute. Then, 
by universal law, as recognized by all Nations, savage 
as well as civilized, the Compact, thus broken by some 
of the Parties, was no longer Ijinding upon the others. 
The breach was not made by the seceding States. Under 
the circumstances, mid the fads of this case, therefore, the 
legal as well as moral right, on the part of Georgia, accord- 
ing to the laws of Nations and nature, to declare herself 
no longer bound by the Compact, and to withdraw from 
the Union under it, was perfect and complete. These 
principles are too incontestably established to be ques- 
tioned, much less denied, in the forum of reason and 
justice. 

Hence the broad and unqualified admission of Mr. 
Webster, that, if the Constitution w\as a Compact between 
Sovereign States, the right to secede followed as a mattej 
of course. This right comes not from any thing in the 
Constitution, but from the great law of Nations, govern- 
ing all Compacts between Sovereigns. His language, you 
recollect, was : " where Sovereign communities are parties, 
there is no essential difference between a Compact, a 
Confederation, and a League. They all equally rest on 
the plighted faith of the Sovereign party. A League, or 
Confederacy, is but a subsisting or continuing treaty." 

" If, in the opinion of either party," he added, " it be 
violated, such party may say that he will no longer fulfil 
its obligations on his part, but will consider the whole 
32 



498 CONSTITUTIONAL YIEW OF THE WAR. [Vol. 1. 

League or Compact at an end, although it might be one 
of its stipulations that it should be perpetual."* 

The right of a State to secede from the Union upon 
this principle of the laws of Nations was fully admitted 
by Mr. Webster, if it be true that the Constituticn is a 
Compact between States; and that too when, even in the 
ojnnion of any Party to it, the Compact had been broken 
on the other side. But in this case there is no question 
as to the fact of the breach on the other side. 

Judge Story, who strove so hard to establish the 
position that the Government of the United States is a 
National Government, proper and not Federal, is equally 
explicit in his admission as to the right of Secession, if it 
be true that the Constitution is a Compact between 
States. On this point there is no disagreement between 
him and Mr. Webster. Judge Story first states the 
position of Judge Tucker, in his Commentaries on the 
Constitution, as follows : — 

" It is a Federal Compact. Several Sovereign and 
independent States may unite themselves together by a 
perpetual Confederation, without each ceasing to be a 
perfect State. Tliey will, together, form a Federal Re- 
public The deliberations in common will offer no 
violence to each member, though they may in certain 
respects put some constraint on the exercise of it in 
virtue of voluntary engagements. The extent, modifi- 
cations, and objects of the Federal authority are mere 
matters of discretion. So long as the separate organ- 
ization of the members remains, and, from the nature of 
the Compact, must continue to exist, both for local and 
domestic, and for Federal purposes, the Union is, in fact 
as well as in theory, an association of States, or a Con- 
federacy. "f 

» Ante, p. 309. t Story (j7i the Conditution, vol. i, Book 3, Sec. 311. 



Col. XL] STORY ON THE RIGHT. 499 

This is Story's statement of Tucker's position. It is 
eubstantially correct. He afterwards comments on it, as 
follows : — 

" The obvious deductions, which may be, and indeed 
have been drawn, from considering the Constitution as a 
Compact between the States, are, that it operates as a 
mere treaty, or convention between them, and has an 
obligatory force upon each State no longer than it suit« 
its pleasure, or its consent continues ; that each State has 
a right to judge for itself in relation to the nature, extent, 
and obhgations of the instrument, without being at all 
bound by the interpretation of the -b'ederal Government, 
or by that of any other State ; and that each retains the 
power to withdraw from the Confederacy, and to dissolve 
the connection, when such shall be its choice ; and may 
suspend the operations of the Federal Government, and 
nullify its acts within its own territorial limits, whenever, 
in its own opinion, the exigency of the case may require. 
These conclusions may not always be avowed ; but they 
flow naturally from the doctrines which we have under 
consideration. They go to the extent of reducing the 
Government to a mere Confederacy during pleasure ; and 
of thus presenting the extraordinary spectacle of a nation 
existing only at the will of each of its constituent 
parts."* 

In this. Judge Story fully admits the right of a State 
to withdraw or secede from the Union, if the Constitution 
be a Compact between the States as States, even without 
an open breach of the Compact by the Confederates. He 
says, it is an obvious deduction from the fact of its being 
a Government founded on Compact; too clear and logical 
to give room for doubt or question. He was too thoroughly 
versed in the laws of nations to raise a point even on thip 

* Story on the Constitution, vol. i, Book 3, Sec. 321. 



500 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

conclusion, if the premises as to the Constitution being a 
Compact between States be correct. Hence his hibored 
argument in assault upon the premises. Hence his ut- 
most efforts were put forth, with what success we have 
seen, to show that the States were never Sovereign, and 
that the Constitution is not a Compact between States, 
but that it is a social Compact between all the people of 
the United States in mass as one nation. However ex- 
traordinary, in the opinion of Judge Story, would be the 
spectacle of a nation existing only at the will of each of 
its constituent parts, yet just such a nation ours is, accord- 
ing to his own frank admission, if it be true that the 
Constitution is founded upon Compact between Sovereign 
States, (and this, by common consent between us, is a 
question now no longer open for consideration.) 

Our '' Nation," such as it is, is indeed a most extra- 
ordinary and wonderful spectacle ! This we have abun- 
dantly seen in the course of our present investigation ; 
and if Judge Story had more profoundly studied its 
nature and character, he might have been much more 
profoundly struck with many even more extraordinary 
features in it than that one to which he here specially 
refers. 

That one has nothing in it more extraordinary than 
every other Federal Eepublic that ever existed. Mon- 
tesquieu saw in such s}'stems nothing more extraordinary 
than that under them the world had been saved from 
universal monarchical rule. 

This right of a State to consider herself no longer 
bound bv a Compact which, in her judgment, has been 
broken by her Confederates, and to secede from a Union, 
formed as ours was, has nothing about it, either new or 
novel. It is incident to all Federal Republics. It is not 
derived from the Compact itself. It does not spring from 



Col. XL] GENERAL UNDERSTANDING. 501 

it at all. It is derived from the same source that the 
right is derived to abrogate a treat}^ by either or any of 
the parties to it. That is seldom set forth in the treaty 
itself, and yet it exists, whether it be set forth or not. So, 
in any Federal Compact whatever, the parties may or may 
not expressly provide for breaches of it. But where no 
such provision is made, the right exists by the same laws 
of Nations which govern in all matters of treaties or con- 
ventions between Sovereigns. The admission of the right 
of Secession, under this law, on the part of the several 
States of our Union, by Mr. Webster and Judge Story, if 
it be true that the Constitution is a Compact between the 
States, might be considered ample authority, in answer 
to your question on that point; since the conclusion, to 
which we arrived, that it is such a Compact. 

But I do not mean to let it rest barely on this. 

I maintain that such was the general understanding 
of the parties to the Constitution at the time it was 
adopted, as well as that such is its true exposition. 

" Coutemjwtrinea Expositlo est optima et fortissima in 
Lege." " The best and surest mode of expoundiug an in- 
strument is hij referring to time ivhen, and circiunstances 
under ichich, it was mader''' 

First, then, I maintain that it is a necessary incident 
of that Sovereignty which was believed to be reserved to 
the States severally, in the original Constitution, but 
which reservation, to quiet the apprehensions of the more 
cautious, was immediately after inserted in express tenns, 
by way of amendment. It was expressly reserved in the 
ratifications of Virginia, New York, and Rhode Island. 
These ratifications were received by the other States, 
which fixes the construction of all at the time. More- 

* 2 Tnat. ii, I>roo7n''s Legal Ifaxiws, p. 3(X). 



502 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

over, the Government was formed, or to be formed, accord- 
ing to the very terms of the Constitution, by the Secession 
of nine States at least from their former Union, which was 
declared to be perpetual, and to which their faith was 
plighted in the most solemn manner, that no changes in 
the Articles of their Union should ever be made without 
the unanimous consent of its thirteen members. What 
is there in the history of the times or in the acts of the 
parties, which goes to show that the same general opinion, 
as to the Sovereign right to secede, did not continue to 
exist in reference to the present Constitution, which 
required no pledge as to its perpetuity ? 

Secondly. It is very clear that Mr. Jefferson believed 
in this right. This, the Kentucky Resolutions fully es- 
tablish. The large majority by which he was elected, 
after the fierce contest of 1800, shows that the same 
opinion must have been then very generally entertained. 
Even Mr. Hamilton must have believed that this right 
was incident to the system ; for in his urgent appeals to 
Mr. Jefferson, as early as 1790, for his influence with 
members of Congress, in aid of the bill for the assump- 
tion of the State debts, he presented the strong reason, 
that if that measure should not pass, there was great 
danger of a Secession of the members from the creditor 
States, which would end in " a separation of the States."* 
He was then connected with the Government. He was 
Secretary of the Treasury. Would he have urged such 
an argument if he had not believed that those States had 
a right to withdraw ? Moreover, his letter to Mr. Gou- 
verneur Morris, of the 27th of February, 1802, shows very 
clearly, taken in connection with his whole career, that 
he did not believe that the Government of the United 

* BandaWs Life of Jefferson, vol. i, p. 609. 



Col. XL] TUCKER ON THE EIGHT. 503 

States had any inlierent Sovereign jiower whatever. He 
looked upon the system as radically defective in this par- 
ticular. " Perhaps," says he in this letter, " no man in 
the United States has sacrificed or done more for the 
present Constitution than myself; and contrarij to all 
my anticijxUio/is of its fate, as you hiow from the very he- 
ginning. I am still laboring to prop the frail and 'wortlv- 
less fabric. Yet I have the murmurs of its friends no 
less than the curses of its foes, for my reward."'-' The 
wortlilessness of the fabric, in his opinion, consisted, as 
we know, in the want of the energy of a consolidation of 
the Sovereignties of the several States in one single grand 
Republic, which he had at first insisted upon in the Fed- 
eral Convention of 1787. When that failed, he did give 
the Federal plan agreed upon a zealous and patriotic sup- 
port. He contributed greatly to its adoption by the 
States. But he never had confidence in its durabihfy. 
He thought it would go to pieces by State disintegration. 
His belief and conviction of the want of power on the 
part of the General Government, as formed to prevent 
such disintegration, is shown from all that he said in the 
New York State Convention, when the Constitution was 
before that body, and what he wrote on the same subject 
in the Federalist afterwards. 

But, thirdly. One of the earliest, if not the earliest, 
commentators on the Constitution, not as a politician, but 
as a jurist and publicist, was Judge Tucker, Professor of 
Law in the University of William and Mary, in Virginia. 
In his edition of Blackstone's Commentaries, there is an 
appendix by him to the first volume, of considerable 
len<^'th, devoted to the consideration of Governments 
generally, and particularly the Constitution of the United 



Works of Hamilton., vol. vi, p. 530. 



504 CONSTITUTIONAL YIEW OF THE WAR. [Yol. L 

Stales. He wrote in 1803. He held, as we have seen, 
that the Constitution was a Federal Compact between 
States. And while no more devoted friend to the Union 
under the Constitution perhaps ever lived, he yet v/as 
forced, from this indisputable fact, to what Story said 
was an obvious deduction — that is, that the right of Se- 
cession, on the part of any one or more of the States, 
was a necessary incident from the very nature of the 
system. His language is this: 

'' The Constitution of the United vStates, then, being 
that instrument by which the Federal Government hath 
been created, its powers defined and limited, and the 
duties aud functions of its several departments pre- 
scribed, the Government, thus established, may be pro- 
nounced to be a Confederate Republic, composed of 
several Independent and Sovereign Democratic States, 
united for their common defence and security against 
foreign Nations, and for the purposes of harmony and 
mutual intercourse between each other; each State re- 
taining an entire Jiherty of exercising, as it thinks proper, 
all those parts of its Sovereignty which are not men- 
tioned in the Constitution, or Act of Union, as parts that 
ought to be exercised in common." 

" In becoming a member of the Federal Alliance, 
established between the American States by the Articles 
of Confederatioi?, she expressly retained her Sovereignty 
and Independence. The constraints, put upon the exer- 
cise of that Sovereignty by those Articles, did not destroy 
its existence. * * * 

'' The Federal Government, then, appears to be the 
organ through which the united Republics communicate 
with foreign Nations, and with each other. Their sub- 
mission to its operation is voluntary; its councils, its 
engagements, its authority, are theirs, modified and 



Cou XL] TUCKER ON THE RIGHT. 505 

united. Its Sovereignty is an emanation from theirs, 
not a flame, in which they have been consumed, nor a 
vortex, in which tliey are swallowed up. Each is still a 
perfect State, still Sovereign, still independent, and still 
capable, should the occasion require, to resume the exer 
cise of its functions, as such, in the most unlimited ex 
tent. =•■ =^= •'' 

" But, until the time shall arrive, when the occasion 
requires a resumption of the rights of Sovereignty by 
the several States (and far be that period removed, 
when it shall happen), the exercise of the rights of Sov- 
ereignty by the States, individually, is wholly suspended 
or discontinued in the cases before mentioned ; nor can 
that suspension ever be removed, so long as the present 
Constitution remains unchanged, but by the dissolution 
of the bonds of union ; an event which no good citizen 
can wish, and vs'hich no good or wise administration v/ill 
ever hazard.""" 

A clearer or truer exposition of this feature of the 
Constitution of the United States was never made in 
fewer words. This exposition went to the country with 
the sanction of his high authority, and was not g8.<n- 
sayed or controverted by any writer of distinction, that 
I am aware of, until Chancellor Kent's Commentaries 
appeared in 1826, and Story's, in 1833. I do not mean 
to say that no one of that class of politicians, barely, who 
figured during the Administration of the elder Adams, 
denied this right; but that no jurist or publicist of emi- 
nence denied it up to that time. Chancellor Kent goes into 
no argument. He barely deals, as Mr. Motley does^ in 
assertion. This, we have seen, will not do. But; mean- 
while, Mr. Rawle, an eminent jurist of Pennsylv£.^a, 



* Tuck€r'>s Blackstone^ vol. i, AppemUz^ pp. 170, 171, 175, IB** 



508 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

wrote an elaborate work upon the Constitution, which 
was publinhed in 1825. He was United States District 
Attorney under Washington, and had been offered, by 
him, the Attorney-Generalship of the United States. 
He was, also, a firm supporter of the Administration of 
the elder Adams. This shows the character of the man, 
and the authorit}' with which his opinions should be 
received. His investigations brought him to the same 
conclusion to which Judge Tucker had come. That 
conclusion is expressed by him in the following lan- 
guage :— 

'•Having thus endeavored to delineate the general 
features of this peculiar and invaluable form of Govern- 
ment, we shall conclude with adverting to the principles 
of its cohesion, and to the provisions it contains for its 
own duration and extension. 

" The subject cannot, perhaps, be better introduced 
than by presenting, in its own words, an emphatical 
clause in the Constitution : — 

" ' The United States shall guarantee, to every State 
in the Union, a Republican form of Government ; shall 
protect each of them against invasion ; and, on applica- 
tion of the Legislature, or of the Executive, when tlie 
Legislature cannot be convened, against domestic vio- 
lence.' 

" The Union is an association of the people of Repub- 
lics ; its preservation is calculated to depend on the pre- 
servation of those Republics. The principle of repre- 
sentation, although, certainly, the wisest and best, is not 
essential to the being of a Republic ; but, to continue a 
member of the Union, it must be preserved ; and, there- 
fore, the guarantee must be so construed. It depends 
on the State itself, to retain or abolish the principle of 
representation ; because it depends on itself, whether it 



Col. XI. I EAWLE ON THE RIGHT. 507 

will continue a member of the Union. To deny this 
right, would be inconsistent with the principles on which 
all our political systems are founded ; which is, that the 
people have, in all cases, a right to determine how they 
will be governed. 

" This right must be considered as an ingredient in 
the original composition of the General Government, 
which, though not expressed, was mutually understood ; 
and the doctrine, heretofore presented to the reader, in 
regard to the indefeasible nature of personal allegiance, 
is so far qualified, in respect to allegiance to the United 
States. It was observed that it was competent for a 
State to make a Compact w^itli its citizens, that the reci- 
procal obligations of protection and allegiance might 
cease on certain events ; and it was further observed 
that allegiance would necessarily cease on the dissolution 
of the society to which it was due. * * * 

" The Secession of a State from the Union depends on 
the will of the people of such State. The people, alone, 
as we have already seen, hold the power to alter their 
Constitution, The Constitution of the United States is, 
to a certain extent, incorporated into the Constitutions 
of the several States, b}^ the act of the people. The 
State Legislatures have only to perform certain organical 
operations in respect to it. To withdraw from the Union, 
comes not within the general scope of their delegated 
authority. There must be an express provision to that 
effect inserted in the State Constitutions. This is not, at 
present, the case with any of them, and it would, per- 
haps, be impolitic to confide it to them. A matter, so 
momentous, ought not to be intrusted to those who 
would have it in their power to exercise it lightly and 
precipitately, upon sudden dissatisfaction or causeless 
jealousy, perhaps against the interests and the wishes ol 
a majority of their constituents. 



508 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I 

'' But in any manner by which a Secession is to take 
place, nothing is more certain than that the act should 
be deliberate, clear, and unequivocaL The perspicuity 
and solemnity of the original obligation require corres- 
pondent qualities in its dissolution. The powers of the 
General Government cannot be defeated or impaired by 
an ambiguous or implied Secession on the part of the 
State, although a Secession may, perhaps, be conditional. 
The people of the State may have some reasons to com- 
plain ir respect to acts of the General Government ; they 
may, in such cases, invest some of their own officers with 
the power of negotiation, and may declare an absolute 
Secession in case of their failure. Still, however, the 
Secession must in such case be distinctly and peremp- 
torily declared to take place on that event, and in such 
case — as in the case of an unconditional Secession — the 
previous ligament with the Union would be legitimately 
and fairly destroyed. But, in either case, the people is 
the only moving power."''' ^: * * 

" Under the Articles of Confederation the concurrence 
of nine States was reqnisite for many purposes. If five 
States had withdrawn from that Union, it would have 
been dissolved. In the present Constitution there is no 
specification of numbers after the first formation. It was 
foreseen that there would be a natural tendency to increase 
the number of States with the increase of population then 
anticipated, and now so fully verified. It was also hnown, 
tliomjli it was not avowed, that a State might withdraio it- 
self. The number would therefore be variable. "f * * * 

" To withdraw from the Union is a solemn, serious act. 
Whenever it may appear expedient to the people of a 
State, it must be manifested in a direct and unequivocal 



EoMle, pp. 302, 303. f Bawle, p "^04. 



Col. XL] . RAWLE ON THE RIGHT 509 

manner. If it Is ever done indirectly, the i^eople must 
refuse to elect Representatives, as well as to sutler their 
Legislature to re-appoint Senators. The Senator whose 
time had not yet expired, must be forbidden to continue 
in the exercise of his functions. 

'' But without plain, decisive measures of this nature, 
proceeding from the only legitimate source, the people, 
the United States cannot consider their Legislative powers 
over such States suspended, nor their Executive or J u- 
licial powers any way impaired, and they would not be 
obliged to desist from the collection of revenue, within 
such State. 

''As to the remaining States, among themselves, there 
is no opening for a doubt. 

"Secessions may reduce the number to the smallest 
integer admitting combination. They would remain 
united under the same principles and regulations, among 
themselves, that now apply to the whole. For a State 
cannot be compelled by other States to withdraw from 
the Union, and, therefore, if two or more determine to 
remain united, although all the others desert them, 
nothing can be discovered in the Constitution to prevent it. 

"The consequences of an absolute Secession cannot be 
mistaken, and they would be serious and afflicting. 

" The Seceding State, whatever might be its relative 
magnitude, would speedily and distinctly feel the loss of 
the aid and countenance of the Union. The Union, losimr 
a proportion of the National revenue, would be entitled 
to demand from it a proportion of the National debt. It 
would be entitled to treat the inhabitants and the com- 
merce of the separated State, as appertaining to a foreign 
country. In public treaties already made, whether com- 
mercial or political, it could claim no participation, while 
foreign powers would unwillingly calculate, and slowlj 



510 CONSTITUTIONAL VIEW OF THE WAR. [Yol. I. 

transfer to it, any portion of the respect and confidence 
borne towards the United States,"* 

Mr. Rawle came to the same logical conclusion upon the 
subject of Secession that Judge Tucker had come to. He 
also distinctly asserts that it was knoivri at the time, 
though 7iot avowed, that a State might luiihdraw itself. 
'' It was mutually understood," he says. He was a living 
actor in the scenes. 

Fourthly. — It is upon the grounds or assumption that 
this was the general understanding of the nature of the 
Government at the time, that we can account for the tri- 
umphant success of Mr. Jefferson, in 1800, on the prin- 
ciples of the Virginia and Kentucky Resolutions of 1798- 
99, and Mr. Madison's Report, referred to before. It is in 
accordance with this general understanding that we can 
account for Mr. Hamilton's strong reason for Mr. Jeffer- 
son's co-operation in the matter just stated. 

It is in accordance with the same general understanding 
that we can account for what I have seen it stated was the 
action of the Massachusetts Legislature in 1803, on the 
acquisition of Louisiana. That State, it is said, then 
declared, by solemn resolve, '' That the annexation of 
Louisiana to the Union, transcends the Constitutional 
power of the 'Government of the United States. It 
formed a new Confederacy to which the States united by 
the former Comjjaci are not hound to adhere." 

Whether this Resolution ever was, in fact, passed by 
the Massachusetts Legislature, or not, I have not been 
able to ascertain with absolute certainty. Perhaps you, 
Judge, know whether the statement which has been 
60 generally made be true or not? 

Judge Btnum. I am unable to give any information 
on the subject. 



Bav)ie, pp. 305, 306. 



JoL. XL] NEW ENGLAND CONVENTION, 1814. 511 

Mr. Stephens. Well, be that as it may, tlie Legisla- 
ture of Massachusetts, in 1844, did, without question, 
pass a series of Resolutions upon the annexation of 
Texas, of which the following is a part : 

" Resolved, * * That the project of the annexation 
of Texas, unless arrested on the threshold, may drive 
these States into a dissolution of the Union." 

On the same subject, on the 22d of February, 1845, 
the ,s;ime body adopted another series of Resolutions, in 
which the following occurs : 

" Resolved, * * "^^ and as the powers of Legisla- 
tion granted in the Constitution of the United States 
to Cono-ress, do not embrace the case of the admission of 
a foreign State, or foreign territory, by Legislation, 
into the Union, such an act of admission would have 
no binding force whatever on the people of Massachu- 
setts." 

Here are authentic copies of each of these sets of 
Resolutions.* They are not at all inconsistent with 
those said to have been passed on a similar subject in 
1803. These Resolutions show clearly the understand- 
ing of Massachusetts as late as 1844-45, of the nature 
of the Compact of our Union. Though she did noi see 
fit to exercise her right to secede or withdraw, she 
nevertheless unmistakably asserted her right to do so 
under circumstances then existing, by asserting that she 
would not be bound by the anticipated action of the 
General Government in the matter of the annexation of 

Texas. 

Moreover, it is in strict accordance with this general 
understanding that several of the Eastern States, upon 
the call of Massachusetts,! assembled by their deputies 

* See also LunVs History of the Origin of the War, pp. 467-8. 
t Niles's Eegister, vol. vii, p. 101. 



512 CONSTITUTIONAL YIEW OF THE WAR. fVou I. 

in the well-known New England or Hartford Convention, 
in December, 1814.* These States, it is well known, were 
greatly disaffected towards the Federal Administration. 
It was during our last war with Great Britain. Tliey con- 
ceived their interest to be improperly sacrificed by the 
policy pursued in the conduct of the war. Tiie Conven- 
tion was called to devise some course to be taken by these 
States for a redress of their common grievances. They 
did nothing, however, but issue an address setting forth 
their grievances, and appoint a delegation to present them, 
with their views, to the Federal authorities at Washing- 
ton ; and provide for another Convention to take further 
action in the premises. This address went into a very 
full review of the nature of the Government. In it the 
following principles are set forth : 

" It is as much the duty of the State authorities to 
watch over the rights reserved, as of the United' States 
to exercise the powers which are delegated." 

Further on this language occcurs : 

" But in cases of deliberatcj dangerous and palpable 
infractions of the Constitution, affecting the Soverelfjnffj 
of a /State and liberties of the people, it is not only the 
right, but the duty of such a State to interpose its au- 
thority for their protection in the manner best calculated 
to secure that end. When emergencies occur which are 
either beyond the reach of the judicial tribunals, or too 
pressing to admit of the delay incident to their forms, 
States loldcli have no common umpire must he their own 
judges, and execute their own decisions.f" 

To this document are signed, amongst others, the 
venerable names of Nathan Dane, George Cabot, Zephe- 
nia Swift, James Hillhouse, and Harrison G. Otis. Dane 

* 'N'iles''s Register, vol. vii, p. 2G9. t Nilcs's Register, vol. vii, p iiOti 



Col. XL] NEW ENGLAND CONVENTION, 1814. 513 

was the founder of the Professorship of Law in the Cam- 
bridge University, and was the author of the Abridg- 
ment of American Law, so often quoted by Judge Story, 
as well as the author of the celebrated ordinance for the 
government of the North-western Territory, in 1787. 
That these States did intend to secede and withdraw 
from the Union, unless their grievances complained of 
were redressed, there can be no doubt, and that these 
eminent jurists thought then that they had a right to do 
80, is equally clear. 

The news, however, of the treaty of peace which had 
been signed at Ghent, on the 24th day of December, 
1814, was soon after received in this country, and put 
an end to all other proceedings under this movement of 
these States. 

But what is remarkable in the history of that contro- 
versy is, that in no debate in Congress were the funda- 
mental doctrines of this address called in question, so 
far as I have been able to discover. Mr. Madison, then 
President, made no allusion, in his message to Congress, 
to this movement. Niles's Register contains six able 
leading editorial articles against this Convention and 
its proceedings, but in none of them is the right of the 
States to withdraw from the Union, if they choose to do 
so, questioned. It is true, the Convention was generally 
odious, at the time, to the people of a large majority 
of the States, and has been ever since. This was from 
the fact that the threatened Secession was in time of 
war, and a war which had been undertaken mainly, 
at the instance of these States, in defence of their ship- 
ping and navigating interests. It is also true, that 
some journalists and partisans of the day did charge the 
movement to be treasonable. But what have not parti- 
san journalists and public speakers, in times of excite- 
33 



514 CONSTITUTIONAL VIEW OF THE WAR. [Vol. L 

ment, charged to be treasonable! Almost every matter 
in the administration of Government, that does not suit 
their own peculiar views and notions. This charge was 
not made by any of the officials of the Government, that 
I am aware of, and what I mean to say is, that the right 
of a State to withdraw from the Union was never denied 
or questioned, that I am aware of, by any jurist, pub- 
licist, or statesman of character and standing, until Kent's 
Commentaries appeared, in 1826, nearly forty years after 
the Government had gone into operation! From the 
weight of evidence, therefore, the conclusion follows, 
that in the opinion of the fathers generally, as well as 
of the great mass of the people throughout the country, 
the right existed. It has been stated by high authority, 
that " the right of Secession" is not a plant of Southern 
origin" — "it first sprung up in the North."* A more 
accurate statement would be that it was not sectional but 
contmental in its origin. It Avas generally recognized in 
all parts of the Union during the earlier days of the 
Kepublic. 

Fifthly and lastl}^, this right, so apparent to all clear 
and unbiassed minds from all the facts connected with 
the history and nature of the Government, is fully and 
clearly recognized by all foreign w^riters and publicists 
who have made our institutions their study. Prominent 
in this class stands Dc Tocqueville, before alluded to. 
On this point he says : — 

" However strong a Government may be, it cannot 
easily escape from the consequences of a principle which 
it has once admitted as the foundation of its Constitu- 
tion. The Union was formed by the voluntary agree- 
ment of the States ; and these, in uniting together, have 

* Mr. Buchanan — Ilistory of his Admmistratiov., p. 86. 



Col. XI.] VICE PRESIDENT WADE ON THE RIGHT. 515 

not forfeited their Nationality, nor have they been 
reduced to the condition of one and the same people. 
If one of the States chose to withdraw its name from the 
contract, it would be difficult to disprove its right of 
doing so, and the Federal Government would have no 
means of maintaining its claims directly, either by force 
or by right."* 

To the name of De Tocqueville, the names of many of 
the most eminent writers in Europe, upon our institu- 
tions, might be added. Why, however, multiply autho- 
rities of this sort to show either the unprejudiced judg- 
ment of foreign writers upon the subject, or the general 
understanding of all parties in this country, during the 
earlier and better days of the Republic ? Men of great 
ability of our own day — men, who stand high in the Re- 
publican ranks at this time, who had and have no sym- 
pathy with the late Southern movement, are fully com- 
mitted to the rightfulness of that movement. Mr. Lin- 
coln himself w^as fully committed to it. Besides him, I 
refer you to but two others of this class, now prominent 
actors in public affairs. They are Senator Wade, of 
Ohio, at this time the Vice President of the United States, 
and Mr. Greeley, of the New York Trihune, who is " a 
power behind the throne greater than the throne itself." 

Mr. Wade, in the Senate of the United States, on the 
23d of February, 1855, used the following language : I 
read from the Appendix to the Congressional Globe, 2d 
Session, 33d Congress, page 214. 

^' Who is to be judge, in the last resort, of the violation 
of the Constitution of the United States by the enactment 
of a law? Who is the final arbiter? The General Gov- 
ernment, or the States in their Sovereignty ? Why, sir, 



Dt TocquevilW's Democracy in America, vol. i, p. 498. 



516 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I. 

to yield that point, is to yield up all the rights of the 
States to protect their own citizens, and to consolidate 
this Government into a miserable despotism. I tell you, 
sir, whatever you may think of it, if this bill pass, colli- 
sions will arise between the Federal and State jurisdic- 
tions — conflicts more dangerous than all the wordy wars 
which are got up in Congress — conflicts in which the 
States will never yield ; for the more you undertake to 
load them with acts like this, the greater will be their 
resistance." 

Again, he says, in the same speech : 

"I said there were States in this Union whose highest 
tribunals had adjudged that bill to be unconstitutional, 
and that I was one of those who believed it unconstitu- 
tional : that my State believed it unconstitutional ; and 
that, under the old Resolutions of 1798 and 1799, a 
State must not only be the judge of that, but of the 
remedy in such a case." 

This is enough to show that he put himself at that 
time squarely upon the old States' Rights State Sover- 
eignty Jefiersonian platform of 1798 and 1799. Judge 
Story has told us what the obvious deductions from these 
principles are. 

Let us now see what Mr. Greeley says. I read from 
the American Conflict, vol. i, page 359. It is taken from 
the editorial of his own paper, the Tribune, issued as late 
as the 9th day of November, 1860. 

" The telegraph informs us that most of the Cotton 
States are meditating a withdrawal from the Union, be- 
cause of Lincoln's election. Very well : they have a right 
to meditate, and meditation is a profitable employment 
of leisure. We have a chronic, invincible disbelief in Dis- 
union as a remedy for either Northern or Southern griev- 
ances. We cannot see any necessary connection between 



Col. XI.l MR. GREELEY ON THE RIGHT. 517 

the alleged disease and this ultra-heroic remedy; still, 
we say, if any one sees fit to meditate Disunion, let him 
do so unmolested. That was a base and hypocritic row 
that was once raised at Southern dictation, about the 
ears of John Quincy Adams, because he presented a peti- 
tion for the dissolution of the Union. The petitioner had 
a right to make the request ; it was the Member's duty 
to present it. And now, if the Cotton States coubider 
the value of the Union debatable, we maintain their per- 
fect right to discuss it. Nay : we hold, with Jefferson, to 
the unalienable right of communities to alter or abolish 
forms of government that have become oppressive or 
injurious ; and, if the Cotton States shall decide that they 
can do better out of the Union than in it, we insist on 
letting them go in peace. The right to secede may be a 
revolutionary one, but it exists nevertheless ; and we do 
not see how one party can have a right to do what another 
party has a right to prevent. We must ever resist the 
asserted right of any State to remain in the Union, and 
nullify or defy the laws thereof; to withdraw from the 
Union is quite another matter. And, whenever a con- 
siderable section of our Union shall deliberately resolve 
to go out, we shall resist all coercive measures designed 
to keep it in. We hope never to live in a Republic, 
whereof one section is pinned to the residue by bayonets. 
" But, while we thus uphold the practical liberty, if 
not the abstract right, of Secession, we must insist that 
the step be taken, if it ever shall be, with the deliberar 
tion and gravity befitting so momentous an issue. Let 
ample time be given for reflection; let the subject be 
fully canvassed before the people ; and let a popular vote 
be taken in every case, before Secession is decreed. Let 
the people be told just why they are asked to break up 
the Confederation ; let them have both sides of the ques- 



518 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

tion fully presented ; let them reflect, deliberate, then 
vote ; and let the act of recession be the echo of an un- 
mistakable popular fiat. A judgment thus rendered, a 
demand for separation so backed, would either be ac- 
quiesced in without the effusion of blood, or those who 
rushed upon carnage to defy and defeat it, would place 
themselves clearly in the wrong."* 

What better argument could I make to show the rightful- 
ness of Secession, if the Southern States of their own good- 
will and pleasure chose to resort to it, even for no other 
cause than Mr. Lincoln's election, than is herein set forth 
in his own pointed, strong, and unmistakable language? 
It is true, he waives all questions of Compact between 
the States. He goes deeper into fundamental principles, 
and plants the right upon the eternal truths announced 
in the Declaratioi> of Independence. That is bringing 
up principles which I have not discussed, not because I 
do not indorse them as sound and correct, to the word 
and letter, but because it was not necessary for my 
purpose. Upon these immutable principles the justi- 
fialjleness of Georgia in her Secession Ordinance of the 
19 til of January, 1861, will stand clearly established for 
all time to come. For if, with less than one hundred 
thousand population, she was such a people in 1776 as 
had the unquestionable right to alter and change their 
form of Government as they pleased, how much more 
were they such a people, with more than ten times the 
number, in 1861? The same principle applies to all the 
States which quit the old and joined the new Confeder- 
ation. Mr. Greeley here speaks of the Union as a 
Confederation, and not a Nation. This was, perhaps, the 
unconscious utterance of a great trutli when the trvs spirit 
was moving him. 

* Oreeley''s American Conjikt, vol. i, p. 359, 



Col. Xl.J MR GREELEY ON THE RIGUT. 519 

The State of Georgia did not take this step, however, 
in withdrawing from the Confederation, without the 
most thorough discussion. It is true it was not a dispas- 
sionate discussion. Men seldom, if ever, enter into such 
discussions with perfect cahnness, or even that degree 
of calmness with which all such subjects ought to be 
considered. But the subject was fully canvassed before 
the people. Both sides were strongly presented. Li the 
very earnest remonstrance against this measure made by 
me, on the 14tli of November, 1860, to which you have 
alluded, was an appeal equally earnest for just such a 
vote as he suggests in order that the action of the State 
on the subject might be " the echo of an unmistakable, 
popular fiat." On the same occasion I did say, in sub- 
stance, just what he had so aptly said before, that the 
people of Georgia, in their Sovereign capacity, had the 
right to secede if they chose to do so, and that in this 
event of their so determining to do, upon a mature con- 
sideration of the question, that I should bo\\^ in submission 
to the majesty of their Avill so expressed ! 

This, when so said by me, is what it seems was '' the 
dead fly in the ointment" of that speech ; so sadly " mar- 
ring its general perfume." This was " the distinct avowal 
of the right of the State to overrule my personal con- 
victions and plunge me," as he says, " into treason to the 
Nation !"* 

Was not the same " dead fly in the ointment" of his 
article of the 9th of November, only five days before? 
A nd if going with my State, in what he declared she had 
a lierfect right to do, plunged me into treason to the 
Nation, is he not clearly an accessory before the fact by 
a rule of construction not more strained than that laid 
down in the trial of State cases by many judges not quite 

* American Conflict, vol. i, page 343. Also ante, p. 22. 



520 CONSTITUTIONAL YIEW OF THE WAR. [Vol. L 

SO notoriously infamous as Jeffreys ? By a rule not more 
strained than that which would make out treason in the 
act itself ! But I do not admit the rule in its application 
either to the accessory or the principal. 

Now in relation to Mr. Lincoln. He himself, in 1848, 
announced the same general principles as above announced 
by Mr. Greeley in 1860. On the 12th day of January, 
1848, Mr. Lincoln, in the House of Represenatives, made 
a speech which I heard. Here is that speech. In it he 
used this language. I read from the Appendix to the 
Congressional Globe, First Session, Thirtieth Congress, 
page 94 

"Any people any where, being inclined and having 
the power, have the right to rise up and shake off the 
existing Government, and form a new one that suits 
them better. This is a most valuable, a sacred right — a 
right which, we hope and believe, is to liberate the 
world. Nor is this right confined to cases in which the 
whole people of an existing Government may choose to 
exercise it. Any portion of such people that can, may 
revolutionize, and make their own of so much of the 
territory as they inhabit. More than this, a majority of 
any portion of such people may revolutionize, putting 
down a minority, intermingled with, or near about them, 
who may oppose their movements. Such minority was 
precisely the case of the Tories of our own Revolution. 
It is a quality of revolutions not to go by old lines, di 
old laws ; but to break up both, and make new ones." 

Even if Secession was but a revolutionary right, and 
did not spring at all from the nature of the Compact be- 
tween the States, Mr. Lincoln here distinctly admits the 
rigid, — a " most valuable and sacred rigJif — as one of a 
revolutionary character. K this be a sacred right, even 
m ihis view, how. in the language of Mr. Greeley, can 



UoL. XL] EIGHTS, LIKE TRUTHS, ALWAYS FIT. 621 

there exist any legal or moral right anywhere else to 
prevent its exercise ? There cannot he two antagonistic 
rights ! Rights, like truths, always fit as between them- 
selves! They never jar, impinge, or collide ! 

Thus the moral and political worlds, when rightly ad- 
ministered, present the same beauty and symmetry which 
pervade the physical in all its parts, extending through- 
out creation ; and in the practical workings of all their 
parts, produce a perfect concord and harmony, not unlike 
that symphony of the spheres in the material universe 
which has gone forth from the time the most distant stars 
liiised the grand chorus in the morning of their birth! 

You thus have, gentlemen, a very full review of the 
grounds upon which my convictions of duty, in regard to 
the right of Secession, were founded. They arose from 
my understanding of the nature of the Government of 
the United States, and where, under the system, that 
Paramount authority resides, to which ultimate allegiance 
is due. The conclusion to which I came was, that this 
ultimate Paramount authority had never been parted 
with by the States — that, from the nature of the Federal 
Government, and from the very terms of the Compact 
between the States, this Sovereign power was reserved to 
them, severally. If I erred in that conclusion, you see I 
erred with many of the brightest intellects, ablest states- 
men, and purest patriots of this as well as other coun- 
tries. 

But even if I erred with them on this point, v^e see it 
fully and clearly admitted, by very high authority in the 
ranks of modern Eepublicanism, that it does nevertheless 
still there reside, according to the great fundamental 
principles of the American Ptcvolution ! In either view, 
was I not fully justified in the course I took ? 

I will not ask your judgment upon the matter, how 



522 CONSTITUTIONAL YIEW OF THE WAR. , [Yol. 1. 

ever clearly I may think that this exposition of my 
course shows that I acted rightly and patriotically. 1 
know full ^vell that ^^ou have been too thoroughly 
schooled in different opinions for any one reasonably to 
expect so radical a change of them in so short a time. 
Men's opinions or convictions upon such questions do not 
so readily or easily change. Truths of this character do 
not bring forth their fruits in a day. They must have 
time to germinate, grow, and develop, first. 

It is better, therefore, to leave these questions for the ver- 
dict of posterity — for the enlightened and unimpassioned 
judgment of mankind. By this, we or our memories 
must all abide. All that any of us can do in the pre- 
mises is, to see to it that all the facts, as well as a true 
account of our actions, shall be transmitted to that 
august tribunal. This is the work of history. The only 
anxiety I have on the matter is, that this work shall be 
faithfully performed — that the record shall be rightly put 
up. This being done, I entertain no apprehensions as to 
the verdict and judgment upon it hereafter to be rendered. 
From these opposing and conflicting priciples, however, 
as I said in the beginning, the war sprung. These were 
the latent but real causes. 

Now, then, if it is agreeable, we will proceed to con- 
mder that immediate and exciting question which brought 
these organic principles into such terrible physical con- 
flict in the inauguration of the war. 



COLLOQUY XIL 

CONCLUSION OF THE ARGUMENT — IS A CONPEDEUATED GOVEliNMEXT TOO 
WEAK TO SEGUliE ITS OBJECTS — ON THE CONTKARY, IS IT NOT TUB 
STRONGEST OF ALL GOVEHNMEXTS — THE OPINIONS OF MR. JOHN QUINCY 
ADAMS AND MR. JEFFERSON — IN SECESSION WAS INVOLVED THIS GRJ<.».T 
RIGHT, WHICH LIES AT THE FOUNDATION OF THE FEDERATIVE SYSTEM OP 
GOVERNMENT — IT WAS OF INFINITELY MORE IMPURTANCE TO THE SuUTH 
ERN STATES THAN SLAVERY, SO-CALLED, WITH ITS TWO THOUSAND MIL 
LIONS OF CAPITAL INVESTED IN THAT INSTITUTION. 

Judge Bynum. Before proceeding furtlier, I wish briefly 
to say, at this poiut, that we have no disposition, or at 
least I have none, to pronounce judgment in the matter 
under consideration, so f\ir as it relates to your course, 
or that of others. It was with no such views or feelings, 
the subject Avas at first introduced. We all know full 
well, that whatever opinion we entertain, or might be 
inclined to express upon it, if expressed, would have 
but little weight with that great arbiter, by Avhom the 
future judgment to which you refer will be rendered. 

But you will allow me to say, that I do not see how 
you, with your ideas of its nature, could consider the 
Government of the United States " the best the world 
ever saw." To me it seems very much, as it did to 
Judge Story, that such an association of States, bound 
by notliing stronger than their own will and pleasure, 
would be no Government at all. It would have no adhe- 
sive quality between its parts or members. It would 
liave no stability, no durability, no strength ; the bonds 
of union, in that view, it does seem to me, would be no 
better, as is often said, than a rope of sand. A Govern- 

523 



52J: CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1. 

ment, to be worth any thing, must be strong; it must be 
held together by force. It must be clothed with power, 
not only to pass laws, but to command obedience. What 
would become of the public faith, of the public credit, of 
the public property? What Nation would put any con- 
fidence in such a Government, if its nature and organic 
structure were so understood abroad ? Who would treat 
with such a country, or enter into any agreements, or 
conventions, with a Government so constructed, upon 
any matters of trade, commerce, finance, or any thing 
else? It would be virtually treating with an ideal 
power that had no real existence ! The solemn agree- 
ments entered into one day, by what you call the hare 
agent of a number of separate Sovereignties, might be 
annulled the next, by any one of these Sovereigns. Such 
a Government, it seems to me, you will excuse me for 
sajing it, so far from being entitled to the respect even, 
of any one, would deserve and receive nothing but the 
contempt of mankind! 

Mr. Stepiiexs. Do not be so quick and broad in your 
conclusion. Just such Governments, founded upon just 
such principles, have existed, and have received, you 
must upon reflection admit, not the contempt but the 
admiration of mankind ! What think you of the Con- 
federations of Greece? They were just such Governments. 
To whom is the world so much indebted for European 
civilization at this time, as to the little Republics upon 
the Archipelago, held together by no other bonds than 
their oicn consent ? By whom were the battles of Mara- 
thon, and Salarais, and Platsea, fought ? By whom was 
the progress of Asiatic Empire stayed in its westward 
march, but by States so united ? What people on earth 
have left more enduring monuments of their greatness in 
the defence and maintenance of liberty, or the develop- 



Col. XII.] THE STRENGTH OF CONFEDERATIONS. 525 

ment of art, science, eloquence, or song, than these same 
small Hellenic States, confederated upon precisely the 
principles which you consider of so little worth ? When 
did their greatness and glory depart ? Not until these 
principles were departed from. 

What think you of the United Netherlands ? In main- 
taining successfully, as they did, the great principles of 
civil and religious liberty, in the dawn of modern political 
reformation, did they deserve nothing but the contempt of 
mankind? On the contrary, will not their glorious achieve- 
ments live in history amongst the grandest of any age or 
country? These States were united by no bonds but 
their own voluntary consent. Passing over many other in- 
stances, what think you of our own old Confederation ? Did 
it not carry these States, then thus united, successfully 
through the War of Independence ? A war against one 
of the greatest powers then existing ? A war of seven 
years' duration ? A war jointly waged to establish this 
very principle? Did not France, Sweden and Prussia, 
treat with them? Did not England treac with them 
upon boundary, upon trade, upon commerce, upon mat- 
ters of public right, upon all matters of public faith, when 
she knew that the sanction and co-operation of each State 
was necessary to give absolute validity to some articles 
o-f the treaty? Though the pubhc credit was not so well 
sustained under the machinery of that Confederation aa 
it has been under the new one, yet was it not sufficient 
to carry them through the most perilous struggle that 
any States ever passed successfully through? Have we, 
or mankind, no feelings towards that Confederacy, so 
constituted, which effected such grand results, but con- 
tempt ? 

Now all these Governments, the Grecian, the Germanic, 
as well as our own first Confederation, were founded, as 



526 CONSTITUTIONAL VIEW OF THE WAR. [Vol. I- 

you yourself must admit, upon just such a principle as 
you speak of. The principle of voluntary consent. This 
's the principle upon which are founded all Confedera- 
tions. Just such Governments are all Confederated Re- 
publics. And these are the only kinds of Governments, 
as Montesquieu informs us, which have saved the human 
race from universal monarchical rule. Low as your esti- 
mate of them may be, they are the only escape yet dis- 
covered by man foi free institutions, among bordering 
States or Nations. Governments which have done so 
much for mankind certainly do not deserve, nor have 
they received from them, such sentiments as you imagine. 

But we have seen that our present system is a great 
improvement upon all former models of this kind of Con- 
federation. While it is founded upon the same has'is of 
consent and voluntary agreement, as I hope I have clearly 
shown, yet it has several new and important features in 
its organization, unknown before, and to which we are 
mainl^^ indebted for its unparalleled success in the past. 
It is because of these new features, all resting upon the 
same basis as all other Confederations, placing it far above 
all other sj^stems, that T considered it the best Govern- 
ment the world ever saw. 

The same view was entertained by John Hancock, 
when, in his message to the Legislature of Massachusetts, 
as we have seen, he said, that if the proposed amend- 
ments, which he had himself offered in the State Con- 
vention, should be adopted, the chief one of which was 
the expresslj^ declared reservation of the Sovereignty of 
the States, he should *' consider it the most perfect system 
of Government as to the objects it embraces that has been 
known amongst mankind." 

A Government, to be worth any thing, as you say, 
must be strong Its parts and members must be held 



(Joi,. XII.] JOnN QUINCY ADOIS. 527 

together by force of some sort. This T cordially admit. 
We do not differ as to the force or its extent ; we differ 
only as to its nature and character. Should it bo a 
physical or moral force ? In my judgment, the strongest 
force that can hold the parts or constituent elements of 
any Government together is the affection of the people 
towards it. The Universe is held together by force — the 
greatest of all forces, by Omnipotence itself! This force 
in the material world, which binds and holds together in 
indissoluble union all its parts in their respective and 
most distant orbits throughout the illimitable regions of 
space, is the simple law of attraction ! So should it be 
with all Governments, especially with those formed by 
distinct States United or Confederated upon any sort of 
Compact, Agreement, or Constitution, as ours was, with 
a view, and a sole view, to their mutual convenience and 
reciprocal advantage. 

These, also, evidently, were the views of Mr. John 
Quincy Adams. In his celebrated address before the 
Historical Society of New York, in 1839, in speaking of 
the Union of these States, he says : 

" With these qualifications we may admit the same 
right as vested in the j)eople of every State in the Union, 
with reference to the General Government, which was 
exercised by the people of the United Colonies with refer- 
ence to the supreme head of the British Empire, of which 
they formed a part; and under these limitations have 
the people of each State in the Union a right to secede 
from the Confederated Union itself. Here sttuids the rhjld .' 
But the indissoluble union between the several States of 
this Confederated Nation is, after all, not in the rigJi/, 
but in the lieart ! If the day should ever come (may 
Heaven avert it), when the affections of the people of 
these States shall be alienated from each other; when 
the fraternal spirit shall give way to cold indifference, or 



523 CONSTITUTIONAL VIEW OF THE WAU. [Vol.1. 

collision of interest shall fester into hatred, the bands of 
political asseveration will not long hold together parties 
no longer attached by the magnetism of conciliated inter- 
ests and kindly sympathies ; and far better will it be for 
the people of the dis-United States, to part in friendship 
from each other, than to be held together by constraint ; 
then will be the time for reverting to the precedents 
which occurred at the formation and adoption of the Con- 
stitution, to form again a more perfect Union by dissolv- 
ing that which could no longer bind, and to leave the 
separated parts to be re-united by the law of political 
gravitation to the centre !" 

The strength of the Union, in the opinion of Mr. Adams, 
was not in the right to hold it together hy 'physical force, 
but in i\\Q morcil poioer which springs from the hecirt of 
the people, and which prompts them to sustain it by their 
own voluntary action. This was also doubtless the opinion 
of Mr. Jefferson, when he declared the Government of the 
United States in his judgment, to be the strongest in the 
world. In his first inaugural, soon after his election, 
upon the principles of his own Resolutions touching the 
nature of the Government and the principles upon which 
it was founded, he said : 

^' I know, indeed, that some honest men fear that a 
Republican Government cannot be strong ; that this 6W- 
m'nment is not strong enough. But would the honest 
patriot, in the full tide of successful experiment, abandon 
a Government which has so far kept us free and firm, on 
the theoretic and visionary fear that this Government, the 
WcyrMs best hope, may by possibility want energy to pre- 
serve itself? I trust not. / believe this, on the contrary, 
the strongest Government on the Earth .'"* 

Its strength, in his opinion, lay not in physical force, 

* Statesman'' s 3Ianual, vol. i, p. 150. 



Col. XIL] STEENGTH OF CONFEDERATIONS. 529 

but in moral power, in the hearts and affections of its 
constituent elements. He fully believed in the right of 
any State to withdraw when the terms of the Compact 
were broken by the other parties to it, and he believed 
in the perfect and absolute right of each party for itself 
to judge as well of infractions of the Compact as the mode 
and measwe of redress. 

Indeed, this is the self-adjusting principle of the sys- 
tem. It is the only principle upon which the safety, 
security and existence even of the separate members can 
be maintained and preserved, which is the chief object 
of all Federal Republics. 

Your arguments are but a repetition of the views ex- 
pressed by the advocates of one great consolidated Govern- 
ment, when the new Constitution was under consideration 
in the Philadelphia Convention. The same that caused 
Hamilton to look upon the new Constitution which con- 
tinued the Federal System as "a frail and worthless 
fabric" though he gave this plan, when he could not get 
his own, a zealous and patriotic support as an experiment. 
It was ir-deed an experiment, a wonderful experiment, 
and most wonderfully was it performing its high mission, 
to his utter astonishment as well as that of all others of 
his class, so long as the primary law of its existence was 
recognized in its administration. 

In illustration of my views of the normal action of the 
system in its practical w^orkings, with its new features 
differing, as we have seen, from all former Federal Re- 
publics, you will excuse me for calling your attention to 
what I said on this subject in the House of Representa- 
tives on the 12th day of February, 1859. 

The views then expressed I still entertain. They were 
given in a speech made on the admission of Oregon. In 
that speech, after going at some length into those agitat- 

34 



530 CONSTITUTIONAL VIEW OF THE WAR. [Vol. T. 

ing questions which were then cuhninating in that crisis 
which ended in the war which we are now considering, 
and after speaking of the nature of the Government and 
urging "a strict conformity to the laws of its existence," 
as essential not only ''for the safety and prosperity of all 
its members," but for its own preservation, I went on 
further to speak not only of what it had accomplished, 
but of the still greater results that might be expected, if it 
should continue to be administered upon the principles and 
for the objects upon which and for v/hich it was formed. 
Here is what was then added : — 

"' Such is the machinery of our theory of self-govern- 
ment by the people. This is the great novelty of our 
peculiar system, involving a principle unknown to the 
ancients, an idea never dreamed of by Aristotle or Plato. 
The union of several distinct, independent communities 
upon this basis (the Federal machinery acting directly 
upon the citizens of the several States within the sphere 
of its limited powers), is a new principle in human Gov- 
ernments. It is now a problem in experiment for the 
people of the nineteenth century, upon this continent, to 
solve. As I behold its workings in the past and at the 
present, while I am not sanguine, yet I am hopeful of its 
successful solution. The most joyous feeling of my heart 
is the earnest hope that it will, for the future, move on 
as peacefully, prosperously, and brilliantly, as it has in 
the past. If so, then we shall exhibit a moral and politi- 
cal spectacle to the world something like the prophetic 
vision of Ezekiel, when he saw a number of distinct 
beings or hving creatures, each with a separate and dis- 
tinct organism, having the functions of lite within itself, 
all of one external likeness, and all, at the same time, 
mysteriously connected, with one common animating 
spirit pervading the whole, so that when the common 



Col. XTI.l THE WORKINGS OF OUR aYSTEM. 531 

spirit moved tiny all moved; tneir appearance and tlieir 
work being, as it were, a wheel in the middle of a wheel ; 
and whithersoever the common spirit went, thither the 
others went, all going together; and when they went, he 
lieard the noise of their motion like the noise of great 
waters, as the voice of the Almighty ! Should our experi- 
ment succeed, such will bo our exhibition — a machinery 
of Government so intricate, so complicated, with so many 
separate and distinct parts, so many independent States, 
each perfect in the attributes and functions of Sove- 
reignty, within its own jurisdiction, all, nevertheless, 
united under the control of a comm^on directing power 
for external objects and purposes, may naturally enough 
seem novel, strange, and inexplicable to the philosophers 
and crowned heads of the world ! 

" It is for us, and those who shall come after us, to 
determine whether this grand experimental problem 
shall be worked out ; not by quarrelling amongst our- 
selves; not by doing injustice to any; not by keeping 
out any particular class of States ; but by each State 
remaining a separate and distinct political organism 
within itself — all bound together, for general oijjects, 
under a common Federal head ; as it were, a wheel 
within a wheel. Then the number may be multiplied 
without limit; and then, indeed, may the nations of the 
earth look on in wonder at our career ; and when they 
hear the noise of the wheels of our progress in achieve- 
ment, in development, in expansion, in glory, and re- 
nown, .it may well appear to them not unlike the noise 
of great waters ; the very voice of the Almighty — Vox 
populi ! Vox Dei /"* 

Such was the spectacle presented to my mind by the 
harmonious workings of our ''glorious institutions," (as 

* Congressional Globe, 2d Session, 35th Congress, p. 124, Appendix. 



532 CONSTITUTIONAL VIEW OF IHE WAR. [Vol I 

Mr. Webster styled them, in 1839,) under the Constitu- 
tion of the United States, as I understood its nature and 
character ! That Constitution which sets forth the terms 
of Union between Free, Sovereign, and Independent 
States — each retaining its separate Sovereignty, and only 
delegating such powers to all the rest as are most con- 
ducive, by their joint exercise, to its own safety, security, 
happiness, and prosperity, as well as most conducive to 
the like safety, security, happiness and prosperity of all 
the other members of the great American Federal Re- 
public — the work of their own voluntary creation ! 

The chief strength of the system, in its proper admin- 
istration, lay, according to my view, in that moral power 
which brought the several members into Confederation. 
It lay in the hearts of the people of the several States, 
and in no right or power of keeping them together by 
coercion. The right of any member to withdraw, which 
you consider an element of weakness, was really, in my 
judgment, one of the greatest elements of strength, look- 
ing in its practical workings to the attainment of the 
objects for which the Union was formed. This right is 
not only the basis upon which all Confederated Repub- 
lics must necessarily be formed, but without it there is, 
and can be, in such systems, no check, no real oarrier, 
nothing, indeed, that can be successfully relied upon to 
prevent their running, sooner or later, into centralized 
despotic Empire, to escape from which, the Federative 
principle was resorted to in the institution of Govern- 
ments for neighboring States. This right is essential to 
avoid that fuial and inevitable result which, without it, 
must necessarily ensue. Its full recognition, as I have 
said, becomes the self-adjusting principle of the system 
by which all its temporary perturbations and irregulari- 
ties of motion will correct and rectify themselves. No 



Col. XIL] WORKINGS OF OUR SYSTEM. 533 

system of Government, as yet discovered, is perfect. All 
have their defects, their irregularities, their eccentrici- 
ties of action. The Federate principle resorted to is 
only an approximation to the hitherto un attained stand- 
ard. But it is the nearest approximation, up to this 
time, reached by the wisdom of man. Ours was a long 
stride nearer the desired goal, by an improvement on 
this principle, than any that ever existed before. 

All Governments of this character are formed upon 
the assumption that it is for the best interest of all the 
members of the Confederation to be united on such terms 
as may be agreed upon, each faithfully performing all its 
duties and obligations under the Compact. Ours was, 
certainly, formed on this assumption, and in this belief. 

No State, therefore, would withdraw, or be inclined to 
withdraw, without a real or supposed breach of faith, on 
the part of her Confederates, or some of them. If the 
complaint were real, the derelict States would right the 
wrong, rather than incur the loss attending the failure to 
do so. For the maintenance of the Union, so long as 
the objects for which it was formed alone are looked to, 
is of equal interest to all. If the complaint were imagin- 
ary, and a State should withdraw, without a real and 
substantial cause, the withdrawal would be but for a very 
brief period of time. It would be but a temporary aber- 
ration. For such State would soon find that she had lost 
more than she had gained in her new position. New 
burthens would devolve on her. New responsibilities, as 
well as her just proportion of those resting on her in 
common with her former Confederates, would have to be 
assumed; or, in a word, all the disadvantages of isola- 
lation, which impelled the Union at first, would be en- 
countered. Under these circumstances and necessary 
consequences, no Federal Union would remain long dls- 



534 CONSTITUTIONAL VIEW OP THE WAR. [Vol. 1. 

severed.^ where this principle was left to its full normal 
action, which was really for the benefit and interest of 
all its members. It is true that none would stand long 
that was inherently and permanently injurious to any» 
and none such ought to stand. For it would be in oppo- 
gition to the very principles and objects upon which, and 
for which, all such unions are formed. 

In what you consider, then, the weakness of our Gov- 
ernment, according to my idea of its nature, I repeat, its 
chief strength, its great beauty, its complete symmetry, 
its ultimate harmony, and, indeed, its very perfection, 
mainly consist ; certainly, so long as the objects aimed 
at in its formation are the objects aimed at in its admin- 
istration. And, on this principle, on the full recognition 
of the absolute ultimate Sovereignty^ of the several States, 
I did consider it the best, and the strongest, and the 
grandest Government on earth ! My whole heart and 
soul were devoted to the Constitution, and the Union 
r.nder it, with this understanding of its nature, character, 
objects, and functions ! 

When, therefore, the State of Georgia seceded, against 
my judgment, viewing the measure in the light o^ policy, 
only, and not of right (for the causes, as we have seen, 
and shall see more fully, hereafter, were more than ample 
to justify the act, as a matter of right), I felt it to be my 
duty to go with her, not only from a sense of the obliga- 
tions of allegiance, but from other high considerations of 
patriotism of not much less weight and influence. These 
considerations pressed upon the mind the importance 
of maintaining this lyrlnciple, which lies at the foundation 
of all Federal systems ; and to which we were mainly in- 
debted, in ours, for all the great achievements of the 
past. It was under this construction of the nature of our 
bystom, that all these achievements had been attained. 



Col. XIL] WORKINGS OF OUR SYSTEM. 535 

This was the essential and vital principle of the sys- 
tem, to which I was so thoroughly devoted. It was 
that which secured all the advantages of Confederation, 
without the risk of Centralism and Absolutism ; and on 
its preservation depended, not only the safety and wel- 
fare, and even existence, of my own State, but the safety, 
welfare, and ultimate existence of all the other States of 
the Union ! The States were older than the Union ! They 
made it ! It was but their own creation ! Their preservar. 
lion was of infinitely more importance than its continu- 
ance ! The Union might cease to exist, and yet the 
States continue to exist, as before ! Not so with the 
Union, in case of the destruction or annihilation of the 
States! With their extinction, the Union necessarily 
becomes extinct also ! They may survive it, and form 
another, more perfect, if the lapse of time and changes 
of events show it to be necessary, for the same objects 
had in view when it was formed ; but it can never sur- 
vive them ! What may be called a Union may spring 
from the common ruins, but it would not be the Union 
of the Constitution ! — the Union of States ! By what- 
ever name it might be called, whether Union, Nation, 
Kingdom, or any thing else, according to the taste of its 
dupes or its devotees, it would, in reality, be nothing but 
that deformed and hideous Monster which rises from the 
decomposing elements of dead States, the world over, and 
which is well known by the friends of Constitutional 
Liberty, everywhere, as the Demon of Centralism, Abso- 
lutism, DcvSpotism ! This is the necessarj^ reality of that 
result, whether the Imperial Powers be seized and wielded 
by the hands of many, of few, or of one ! 

The question, therefore, Avith me, assumed a magnitude 
and importance far above the welfare and destiny of my 
own State, it embraced the welfare and ultimate destiry 



536 CONSTITUTIONAL VIEW OF THE WAR. [Vol.! 

of all the States, North as well as South ; nay, more, it 
embraced, in its range, the general interest of mankind, 
so far, at least, as the oppressed of all other lands and 
climes were looking to this country, not only for a 
present asylum against the evils of misrule in their own, 
but were anxiously and earnestly looking forward to the 
Federative principles here established, as " the World's 
best hope," in the great future, for the regeneration, the 
renaisance, of the Nations of the Earth ! Such, in my 
judgment, were the scope and bearing of the question and 
the principles involved. 

Had this foundation principle of the system then been 
generally acknowledged — had no military force been 
called out to prevent the exercise of this right of with- 
drawal on the part of the seceding States — had no war 
been waged against Georgia and the other States, for their 
assertion and maintenance of this right, had not this 
primary law of our entire system of Government been 
violated in the war so w^aged, I cannot permit myself to 
entertain the shadow of a doubt, that the whole contro- 
versy, between the States and Sections, would, at no dis- 
tant day, have been satisfactorilj' and harmoniously 
adjusted, under the peaceful and beneficent operation of 
this very law itself. Just as all perturbations and irregu- 
larities are adjusted in the solar system, by the simple 
law of gravitation, from ^vhicll alone it sprung in tho 
beginning, and on which alone its continuance, with its 
wonderfully harmonious workings, depends ! 

A brief illustration will more clearly unfold this view. 
Had the right of withdraw^al not been denied or resisted, 
those States, which had openly, confessedly, and avow- 
edly disregarded their obligations, under the Compact*, 
in the matter of the rendition of fugitives from service, 
and fugitiv^es from justice, appealing, as they did, to " a 



Col. XI].] WORKINGS OF OUR SYSTEM. 537 

higher Law" than the Constitution, would have recon- 
sidered their acts, and renewed their covenants under the 
bonds of Union, and the Federal administration would 
have abandoned its policy of taking charge of subjects 
not within the limits of its delegated powers. The hrst 
aberrations in the system ; that is the disregard of 
plighted faith, which had caused the second, that is the 
secession movement, would themselves have been recti- 
fied by that very m 3vement ! This rectification on the 
one side would have been attended by a corresponding 
rectification on the other. This would have been a 
necessary and inevitable result, whatever parties, under 
the influence of passion at the time, may have thought 
of the nature and permanency of the separation. That 
is, it would necessarily and inevitably have been the 
result, if the assumption on which the Union was founded 
be correct, namely, that it was for the best interest of all 
the States to be united upon the terms set forth in the Con- 
stitution — each State faithfully performing all its obligar 
tions, and the Federal Head confining its action strictly 
to the subjects with which it was charged. On this 
point, that the Union was best for all, my own convictions 
were strong and thorough for many reasons, that may be 
given hereafter. If tliis postulate was correct, then the 
ultimate result of this action and re-action in the opera- 
tion of the system in bringing about a re-adjustment of 
the parts to their original places, would have been as 
imvitaUe as the continued harmonious re-adjustment of 
continual disturbances in the material world is being 
produced by like action and counter-action continually 
going on throughout its entire organization, and the 
whole resulting from the same all-pervading and all-con- 
trolling law, the same law continuing the organization 
which broudit it at first into existence 



533 CONSTITUTIONAL VIEW OF THE WAR. [Vol I. 

But if, on the contrary, the whole assumption on 
which the Union was formed was wrong, — if it were not 
for the true and best interests of all the States, consti- 
tuted as they were, to be so united, — if it were true, as 
asserted hy the controlling spirits of the derelict States, 
that the Constitution itself as to them, was but a " cove- 
nant with death and an agreement with Hell," — then, of 
course, the re-adjustment would not have taken place, and 
ought not to have taken place. But I did not believe 
that the masses of the people in these States entertained 
any such sentiments towards the work of their Fathers ! 

My opinion was, that it only required those masses to 
see, feel, and appreciate the great advantages of that 
Union to them ; and to realize the fact that a Compact, 
broken by them, could not longer be binding upon others, 
as Mr. Webster had said, to cause them to compel their 
officials to comply with the terms of an engagement, 
which, upon the whole, was of so great importance to 
their best interests. My convictions were equally strong 
that, when this was done, the masses of the people at 
the South, influenced by like considerations, would have 
controlled all opposition to their cheerful and cordial 
return to their proper places. 

TIkm'c would have been no war, no bloodshed, no 
sacking of towns and cities, no desolation, no billions of 
treasure expended, on either side, and no million of lives 
sacrificed in the unnatural and fratricidal strife ; there 
would have been none of the present troubles about 
restoration, or reconstruction ; but, instead of these 
lamentable scenes, a new spectacle of wonder would 
have been presented for the guide and instruction of the 
astonished Nations of the earth, greater than that ex- 
liibited after the Nullification pacification, of the match- 
less workings of our American Institutions of Self- 
GoA'ernment by the people ! 



Col. XII.] WORKINGS OF OUR SYSTEM. 539 

You readily perceive, therefore, how thoroughly, look- 
ing to the grand results, my entire feelings, heart, Lnd 
soul, with every energy of mind and body, became enlisted 
in the success of this cause, when force was in^'oked, 
when war was waged to put it down. It was the cause, 
not only of the Seceding States, but the cause of all the 
States, and in this view it became, to a great extent, the 
cause of Constitutional Liberty everywhere. It was the 
cause of the Federative principle of Government, against 
the principle of Empire ! The cause of the Grecian type 
of Civilization against the Asiatic ! So, at least, I viewed 
it, with all the earnestness of the profoundest convictions. 

The matter of Slavery, so-called, which was the 
proximate cause of these irregular movements on both 
sides, and which ended in the general collision of war, 
as we have seen, was of infinitely less importance to 
the Seceding States, than the recognition of this great 
principle. I say Slavery, so-called, because there was 
with us no such thing as Slavery in the full and proper 
sense of that word. No people ever lived more devoted 
to the principles of liberty, secured by free democratic 
institutions, than were the people of the South. None 
had ever given stronger proofs of this than they had 
done, from the day that Virginia moved in behalf of the 
assailed rights of Massachussetts, in 1774, to the firing 
of the first gun in Charleston Harbor, in 1861. What 
was called Slavery amongst us, was but a legal subor- 
dination of the African to the Caucasian race. This 
relation was so regulated by law as to promote, according 
to the intent and design of the system, the best interests 
of both races, the Black as well as the White, the Inferior, 
as well as the Superior. Both had rights secured, and 
both had duties imposed. It was a system of reciprocal 
service, and mutual bonds. But ev^'u the two thousand 



540 CONSTITUTIONAL VIEW OF THE WAR. [Vol. 1, 

million dollars invested in the relation thus established, 
between private capital and the labor of this class of 
population, under the system, was but as the dust in the 
balance, compared with the vital attributes of the rights 
of Independence and Sovereignty on the part of the 
several States. For with these whatever changes and 
modifications, or improvements in this domestic insti- 
tution, founded itself upon laws of nature, time, and 
experience, might have shown to be proper in the 
advancing progress of civilization, for the promotion of 
the great ends of society in all good Governments — that 
is tue best interest of all classes, without wrong or injury 
to iiny — could, and would have been made by the superior 
race in these States, under the guidance of that reason, 
justice, philanthropy, and statemanship, which had ever 
marked their course, without the violent disruption of the 
entire social fabric, with all its attendant ills, and incon- 
ceivable wrongs, mischiefs, and sufferings ; and especially 
without those terrible evils and consequences which must 
almost necessarily result from such disruptions and re- 
organizations as make a sudden and complete transfer of 
political power from the hands of the superior to the 
inferior race, in their present condition, intellectually and 
morally, in at least six States of the Union ! 

The system, as it existed, it is true, was not perfect. 
All admit this. No human systems are perfect. But great 
changes had been made in it, as this class of persons were 
gradually rising from their original barbarism, in their 
subordinate sphere, under the operation of the system, and 
from their contact, in this way, with the civilization of 
the superior race. Other changes would certainly have 
been made, even to the extinction of the system, if time, 
with its changes, and the progress of attainments on the 
part of these people had shown it to be proper — that is, best 



Col. XII.] SLAVERY, SO-CALLED. 541 

for both races. For if the system, as designed, was not 
really the best, or could not have been made the best for 
both races, or whenever it should have ceased to be so, it 
could and would have been thoroughly and radically 
changed, in due time, by the only proper and competent 
authority to act in the premises. 

The erroneous dogma of the greatest good to the 
greatest number, Avas not the basis on which this Institu- 
tion rested. Much less was it founded upon the dogma 
01 principle of the sole interest or benefit of the white 
race to the exclusion of considerations embracing the in- 
terests and welfare of the other. It was erected upon no 
such idea as that migUt, barely, gives right, but it was or- 
ganized and defended upon the immutable principles of 
justice to all, which is the foundation of all good Govern- 
ments. This requires that society be so organized as to 
secure the greatest good possible, morally, intellectually, 
and politically, to all classes of persons within their juris- 
dictional control, without necessary wrong or detriment 
to any. This was the foundation principle on which 
this institution in these States was established and de- 
fended.* 

These questions are not now, however, before us. We 
are at present considering the workings of the Federal 
system, and not the wisdom or policy of the social sys- 
tems of the several States, or the propriety of the sfxitus 
of their constituent elements respectively. 

This whole question of Slavery, so-called, was but one 
relating to the proper status of the African as an element 
of a society composed of the Caucasian and African races, 
and the statii^s which was best, not for the one race or the 
other, but best, upon the whole, for both. 



* See A-ppendix F. 



542 CONSTITUTIONAL VIEW OF THE WAR. [Vol, T. 

Over these questions, the Federal Government liad no 
rightful control whatever.* They were expressly ex- 
cluded, in the Compact of Union, from its jurisdiction or 
authority. Any such assumed control was a palpable 
violation of the Compact, which released all the parties 
to the Compact, affected by such action, from their obli- 
p;;ations under the Compact. On this point there can be 
no shadow of doubt. 

Waiving these questions, therefore, for the present, T 
repeat that this whole suljject of Slavery, so-called, in any 
and every view of it, was, to the Seceding State s, but a 
drop in the ocean compared with those other considera- 
tions involved in the issue. Hence, during the whole 
war, being thoroughly enlisted in it from these other and 
higher considerations, but being, at the same time, ever 
an earnest advocate for its speediest termination by an 
appeal from the arena of arms to the forum of reason, 
justice, and right, I was wedded to no idea as a basis of 
peace, but that of the recognition of the ultimate abso- 
lute Sovereignty of all the States as the essential basis 
of any permanent union between them, or any of them, 
consistent with the preservation of their ultimate exist- 
ence and liberties. And I wanted, at no time, any re- 
cognition of Independence on the part of the Confederate 
States, but that of George III., of England. That is, the 
recognition of the Sovereignty and Independence of each, 
by name. 

The Confederate States had made common cause for 
this great principle, as the original thirteen States had 
done in 1776. The recognition of this I regarded as es- 
sential to the future well-being, happiness, and prosperity 
of all the States, in existence and to be formed, as well as 

* See Appendix G 



OoL. XIL] CONTINENTAL REGULATOR. 543 

tlie countless inillions of people who are hereafter to in- 
habit this half of the Western Hemisphere. 

With this simple recognition I saw no formidable diffi- 
culty likely to arise in tlie future, from controversies be- 
tween States or Sections. Whenever the passions of the 
day passed olf, whatever Union or Unions were, or might 
be, really beneficial to all the States, would have resulted 
sooner or later, as inevitably as natural laws produce 
their natural effects. This they do in the moral and 
political world, if left to their proper and legitimate ac- 
tion, with as much certainty as they do in the material. 

With this principle recognized, I looked upon it here- 
after, and at no distant day, to become, by the natural 
law of political affinity — "mutual convenience and re- 
ciprocal advantage" — the great Continental Regulator of 
the Grand Federal Republic of "the United States of 
America," to whatever limits their boundaries miglft go, 
or to whatever extent their number might swell. 



APPENDIX. 



A. 

In Congress, July 4th, 1776. 

THE UNANIMOUS DECLAEATION OF THE THIlirEEN 
UNITED STATES OF AMERICA. 

When, in the course of human events, it become.3 necessary for one 
people to dissolve the political bands which have connected them with 
another, and to assume, among the powers of the earth, the separate 
and equal station to which the laws of nature, and of nature's God 
entitle them, a decent respect to the opinions of mankind requires 
that they should declare the causes which impel them to the separation. 

We hold these truths to be self-evident, that all men are created 
equal ; that they are endowed by their Creator with certain unalienable 
rights; that among these, are life, liberty, and the pursuit of happiness. 
That, to secure these rights, governments are instituted among men, 
deriving their just powers ft-om the consent of the governed ; that, when- 
ever any form of government becomes destructive of these ends, it is the 
right of the people to alter or to abolish it, and to institute a new 
government, laying its foundation on such principles, and organizing 
its powers in such form, as to them shall seem most likely to effect llieir 
safety and happiness. Prudence, indeed, will dictate that governments 
long istablished, should not be changed for light and transient causes ; 
and, accordingly, all experience hath shown, that mankind are moro 
disposed to suffer, while evils are sufferable, than to right themselves by 
abolishing the forms to which they are accustomed. But, when a long 
train of abuses and usurpations, pursuing invariably the same object, 
evinces a design to reduce them under absolute d<;wpotism, it if* tlieir 
35 545 



546 APPENDIX A. 

right, it is their duty, to throw off such govornment, and to provide ne^ 
guards for their future security. Such has been the patient sufferance 
of these colonies, and such is now tlie necessity which constrains them 
to alter their former systems of government. The history of the present 
king of Great Britain is a history of repeated injuries and usurpations, 
all having, in direct object, the establishment of an absolute tyranny 
over these States. To prove this, let facts be submitted to a candid 
world : 

He has refused his assent to laws the most wholesome and necessary 
for the public good. 

He has forbidden his Governors to pass laws of immediate and 
pressing importance, unless suspended in their operation till his assent 
should be obtained ; and, when so suspended, he has utterly neglected 
to attend to them. 

He has refused to pass other laws for the accommodation of large 
districts of people, unless those people would relinquish the right of 
representation in the legislature ; a right inestimable to them, and 
formidable to tyrants only. 

He has called together legislative bodies at places unusual, uncomfort- 
able, and distant from the depository of their public records, for the 
sole purpose of fatiguing them into compliance with liis measures. 

He has dissolved representative houses repeatedly, for opposing, with 
manly lirmiiess, his invasions on the rights of the people. 

He Las refused, for a long time after such dissolutions, to cause 
others to be elected ; whereby the legislative powers, incapable of 
annihilation, have returned to the people at large for their exercise ; 
the State remaining, in the meantime, exposed to all the danger of 
invasion from without, and convulsions within. 

He has endeavored to prevent the population of these States ; for that 
purpose obstructing the laws for naturalization of foreigners ; refusing 
to pass others to encourage their migration hither, and raising the 
conditions of new appropriations of lauds. 

He has obstructed the administration of justice, by refusing his assent 
to laws for establishing judiciary powers. 

He has made judges dependent on his will alone, for the tenure of 
their othces, and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms of 
oflicers to harass our people, and eat out their substance. 

He has kept among us, in times of peace, standing armies, without 
the consent of our legislature. 

He has affected to render the military independent of, and superior to, 
the civil power. 

He has combined, with others, to subject us to a jurisdiction foreign 
to our constitution, and unacknowledged by our laws ; giving his assent 
to their acts of pretended legislation • 



DECLARATION OF INDEPENDENCE. 54.7 

Foi quartering large bodies of armed troops among us : 

For protecting them, by mock trial, from punishment, for any 
murders which they should commit on the inhabitants of these States : 

For cutting off our trade with all parts of the world : 

For imposing taxes on us without our consent : 

For depriving us, in many cases, of the benefits of trial by jurv : 

For transporting us beyond seas to be tried for pretended ollenc(!s : 

For abolishing the free system of English laws in a neighboring prov- 
ince, establishing therein an arbitrary govf-rnment, and enlarging its 
boundaries, so as to render it at once an example and fit instrument for 
introducing the same absolute rule into these colonies : 

For taking away our charters, abolishing our most valuable laws, and 
altering, fundamentally, the powers of our governments : 

For suspending our own legislatures, and declaring themselves in- 
vested with power to legislate for us in all cases whatsoever. 

He has abdicated government here, by declaring us out of his protec- 
tion, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our towns, and 
destroyed the lives of our people. 

He is, at this time, transporting large armies of foreign mercenaries 
to complete the works of death, desolation, and tyranny, already begun, 
■with circumstances of cruelty and perfidy scarcely ])ai'alleled in the most 
barbarous ages, and totally unworthy the head of a civilized nation. 

He has constrained our fellow-citizens, taken captive on the high seas, 
to bear arms against their country, to become the executioners of their 
friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrections amongst us, and has endeav- 
ored to bring on the inhabitants of our frontiers, the nierciless Indian 
savages, whose known rule of warHxre is an undistinguished destruction, 
of all ages, sexes, and conditions. 

In every stage of these oppressions, we have petitioned for redress, iu 
the most humble terms ; our repeated petitions have been answered only 
by repeated injury. A prince, whose character is thus marked by every 
act which may define a tyrant, is unfit to be the ruler of a free people. 

Nor have we been wanting in attention to our British brethren. We 
have warned them, from time to time, of attempts made by their legisla- 
ture to extend an unwarrantable jurisdiction over us. "We have re- 
minded them of the circumstances of our emigration ana settlement 
here. We have appealed to their native justice and magnanimity, and 
we have conjured them, by the ties of our common kindred, to disavow 
these usurpations, which would inevitably interrupt our connections 
and correspondence. They, too, have been deaf to the voice of justice 
and consanguinity. We must, therefore, acquiesce in the necessity, 
which denounces our separation, and hold them, as we hold the rest of 
mankind, enemies in war, in peace, friends. 



648 



APPENDIX A, 



We, therefore, the Eepresentatives of the United Statks op 
America in General Congress assembled, appealing to the Sum-erne 
Judge of the World for the rectitude of our intentions, do, in the name, 
and by the authority of the good people of these colonies, solemnly pub- 
lish and declare, that these United Colonies are, and of right ought to 
be, free and Independent States ; that they are absolved from all allegi- 
ance to the British crown, and that all political connection between them 
and the state of Great Britain, is, and ought to be, totally dissolved ; 
and that, as Free and Independent States, they have full power 
to levy war, conclude peace, contract alliances, establish commerce, and 
to do all other acts and things which Independent States may of 
right do. And, for the support of this declaration, with a firm rehance 
on the protection of Divine Puovidence, we mutually pledge to each 
other, our lives, our fortunes, and our sacred honor. 

The foregoing declaration was, by order of Congress, engrossed, and 

signed by the following members : 
° "^ ° JOHN HANCOCK. 



NEW nA3IPSniRE. 

Josiah Bartlett, 
William Whipple, 
Matthew Thornton. 

RHODE ISLAND. 

Stephen Hopkins, 
William Elleiy. 

CONNECTICUT. 

Roger Sherman, 
Samuel Huntington, 
William AVilliams, 
Oliver Wolcott. 

NEW YORK. 

William Floyd, 
Philip Livingston, 
Francis Lewis. 
liCwis Morris. 

NEW JERSEY. 

Richard Stockton, 
John Witherspoon, 
Francis Hopkinson, 
John Hart, 
Abraham Clark. 



PENNSYLVANIA. 

Robt. Morris, 
Benjamin Rush, 
Benjamin Franklin, 
John Morton, 
Geo : Clymer, 
James Smith, 
George Taylor, 
James Wilson, 
George Ross. 

MASSACHUSETTS BAY. 

Samuel Adams, 
John Adams, 
Robert Treat Paine, 
Elbridge Gerry. 

DELAWARE. 

Ccesar Rodney, 
George Read, 
Thomas M'Kean. 

MARYLAND. 

Samuel Chase, 
William Paca, 
Thomas Stone, 
Charles Carroll, 
of CarroUton. 



VIRGINIA. 

George Wylhe, 
Richard Henry Lee, 
Thomas Jell'erson, 
Benjamin Harrison, 
Thomas Nelson, jun. 
Francis Lightfoot Lee, 
Carter Braxton. 



NORTH CAROLINA. 

William Hooper, 
Joseph Hewes, 
John Penn. 



SOUTH CAROLINA. 

Edward Rutledge, 
Thomas lleywardjjutk 
Thomas Lynch, jun. 
Arthur Middleton. 

GEORGIA. 

Button Gwinnett, 
Lyman Hall, 
George Walton. 



FIRST ARTICLES OF CONFEDERATION. 54.9 

B. 

ARTICLES OF CONFEDERATION AND PERPETUAL UNION 

BETWEEN THE STATES. 

[Tlie foUowing have been critically compared with the 01'iginal Articles 
of Confederation in the Department of State, and found to conform 
minutely to them ^n text, letter, and 2Junctuation. It may therefore be relied 
upjon as a true coj^y-] 

To ALL, TO AVIJOM THESE PRESENTS SHALL COME, WE, THE UNDER- 
SIGNED DELEGATES OF THE STATES AFFIXED TO OUR NAMES, SEND 

GREETING. — Whereas the Delegates of the United States of America 
in Congress assembled did on the loth day of November in the Year of 
our Lord 1777, and in the Second Year of the Independence of America 
agree to certain articles of Confederation and perpetual Union between 
the States of New Hampshire, Massachusetts-bay, Rhode-Island and 
Providence Plantations, Connecticut, New- York, New-.Jersey, Pennsyl- 
vania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, 
and Georgia, in the words following, viz. 

Articles of Confederation and perpetual Union between 
THE States of Neav-Hampsiiire, Massachusetts-bay, Rhode- 
island AND Providence Plantations, Connecticut, New- 
York, New-Jersey, Pennsylvania, Delaware, Maryland, 
Virginia, North-Carolina, South-Carolina, and Georgia. 

Article I, The Style of this confederacy shall be " The United 
States of America." 

Article II. Each State retains its sovereignty, freedom and inde- 
pendence, and every Power, Jurisdiction and right, which is not by this 
confederation expressly delegated to the united states, in congi-ess as- 
sembled. 

Article III. The said states hereby severally enter hito a ' firm 
league of friendship with each other, for their common defence, the 
security of their Liberties, and their mutual and general welfare, bind- 
ing themselves to assist each other, against all force oflered to, or attacks 
made upon them, or any of them,' on account of religion, sovereignty, 
trade, or any other pretence whatever. 

Article IV. The better to secure and perpetuate mutual friendship 
and intercourse among the people of the different states in this union, 
the free inhabitants of each of these states, paupers, vagabonds and 
fugitives from Justice excepted, shall be entitled to all privileges and 
immunities of free citizens in the several states ; and the people of each 
state shall have free ingress and regress to and from any other state, 
and shall enjoy therein all the privileges of trade and commerce, subject 



550 APPENDIX B. 

to the same duties, impositions and restrictions as the inhabitants 
thereof respectively, provided tliat such restriction shall not extend so 
far as to prevent the removal of property imported into any state, to any 
other state of which the Owner is an inhal^itant ; provided also that no 
imposition, 'liit'.vs or restriction shall he laid by any state, on the pro- 
perty of the united states, or either of them. 

If any person guilty of, or charged with treason, felony, or other high 
misdemeanor in any state, shall flee from Justice, and be found in any 
of the united states, he shall upon demand of the Governor or executive 
power, of the state from which he fled, be delivered up and removed to 
tlie state having jurisdiction of his ofience. 

Pull faith and credit shall be given in each of these states tc the re- 
cords, acts and judicial proceedings of the courts and magistrates of 
every other state. 

AiiTiCLE Y. For the more convenient management of the general 
interests of the united states, delegates shall be annually appointed in 
such manner as the legislature of each state shall direct, to meet in con- 
gress on the first Monday in ^November, in every year, w-ith a power 
reserved to each state, to recal its delegates, or any of them, at any time 
within the year, and to scud others in their stead, for the remainder of 
the Year. 

No state shall be represented in congress by less than two, nor by 
more than seven members ; and no person shall be capable of being a 
delegate for more than three years in any term of six years ; nor shall 
any person, being a delegate, be capable of holding any office under the 
united states, for which he, or another for his benefit receives any salary, 
fees or emolument of any kind. 

Each state shall maintain its own delegates in any meetmg of the 
states, and while they act as members of the committee of the states. 

In determining questions in the united states, in congress assembled, 
each state shall have one vote. 

Freedom of speech and debate in congress shall not be impeached or 
questioned in any Court, or place out of congress, and the members of 
congress shall be protected in their persons from arrests and imprison- 
ments, during the time of their going to and from, and attendance ou 
congress, except for treason, felony, or breach of the peace. 

Akticle YI. No state without the Consent of the united states iu 
congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance or treaty with 
any King prince or state ; nor shall any person holding any office of 
profit or trust under the united states, or any of them, accept of any pre- 
sent, emolument, office or title of any kind whatever, from any king, 
prince or foreign state ; nor shall the united states in congress assembled, 
or any of them, grant an}"- title of nobility. 

No two or more states shall enter into any treaty, confederation or 



FIRST ARTICLES OF CONFEDERATION. 551 

alliance whatever between them, without the consent of the united states 
in congress assembled, specifying accurately the purposes for which the 
same is to be entered into, and how long it shall continue. 

No state shall lay any imposts or duties, which may interfere with 
any stipulations in treaties, entered into by the united states in congress 
assembled, with any king, prince or state, in pursuance of any treaties 
already proposed by congress, to the courts of France and Spain, 

No vessels of war shall be kept up in time of peace by any state, ex- 
cept such number only, as shall be deemed necessary by the united 
states in congi-ess assembled, for the defence of such state, or its trade ; 
nor shall any body of forces be kept up by any state, in time of peace, 
except such number only, as in the judgment of the united states, in 
congress assembled, shall be deemed requisite to garrison the forts 
necessary for the defence of such state ; but every state shall always 
keep up a well regulated and disciplined militia, sufficiently armetl and 
accoutred, and shall provide and have constantly ready for use, in pub- 
lic stores, a due number of field pieces and tents, and a proper quantity 
of arms, ammunition and camp equipage. 

No state shall engage in any war without the consent of the united 
states in congress assembled, unless such state be actually invaded by 
enemies, or shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such state, and the danger 
is so imminent as not to admit of a delay, till the united states in cou- 
grcss assembled can be consulted ; nor shall any state grant commissions 
to any ships or vessels of war, nor letters of marque or reprisal, except 
it be after a declaration of war by the united states in congress assem- 
bled, and then only against the kingdom or state and the subjects 
thereof, against which war has been so declared, and under such regula- 
tions as shall be established by the united states in congress assembled, 
unless such state be infested by pirates, in which case vessels of was 
may be fitted out for that occasion, and kept so long as the danger shall 
continue, or until the united states in congress assembled shall deter- 
mine otherwise. 

Article VII. AYhen land-forces are raised by any state for the 
common defence, all officers of or under the rank of colonel, shall be 
appointed by the legislature of each state respectively by whom such 
forces shall be raised, or in such manner as such state shall direct, and 
all vacancies shall be filled up by the state which first made the appoint- 
ment. 

Article VIII. All charges of war, and all other expenses that shall 
De incurred for the common defence or general welfare, and allowed by 
the united states m congress assembled, shall be defrayed out of a com- 
mon treasury, which shall be supplied by the several states, in propor- 
tion to the value of all land within each state, granted to or surveyed 
for any Person, as such land and the buildings and improvemeuls 



552 APPENDIX B. 

thereon shall be estimated according to such mode as the united states 
in congress assembled, shall from time to time, direct and appoint. 
The taxes for paying that proportion shall be laid and levied by the 
authority and direction of the legislatures of the several states within 
the time agreed upon by the united states in congress assembled. 

Article IX. The united states in congress assembled, shall have 
the sole and exclusive right and power of determining on peace and 
war, except in the cases mentioned in the Gth article — of sending and 
receiving ambassadors — entering into treaties and alliances, provided 
that no treaty of commerce shall be made whereby the legislative powei 
of the respective states shall be restrained from imposing such imposts 
and duties on foreigners, as their own people are subjected to, or from 
prohibiting the exportation or importation of any species of goods or 
commodities whatsoever — of establishing rules for deciding in all cases, 
what captures on land or water shall be legal, and in what manner 
prizes taken by land or naval forces in the service of the united states 
shall be divided or appropriated — of granting letters of marque and 
reprisal in times of peace — appointing courts for the trial of piracies and 
felonies committed on the high seas and establishing courts for receiving 
and determining finally appeals in all cases of captures, provided that 
no member of congress shall be appointed a judge of any of the said 
courts. 

The united states in congress assembled shall also be the last resort 
on appeal in all disputes and differences now subsisting or that hereafter 
may arise between two or more states concerning boundary, jurisdiction 
or any other cause whatever ; which authority shall always be exercised 
in the manner following. Whenever the legislative or executive author- 
tty or lawful agent of any state in controversy with another shall 
present a petition to congress, stating the matter in question and pray- 
ing for a hearing, notice thereof shall be given by order of congress to 
the legislative or executive authority of the other state in controversy, 
and a day assigned for the appearance of the parties by their lawfu. 
agents, who shall then be directed to appoint b}^ joint consent, commis- 
sioners or judges to constitute a court for hearing and determining the 
matter in question : but if they cannot agree, congress shall name three 
persons out of each of the united states, and from the list of such per- 
sons each party shall alternately strike out one, the petitioners begin- 
ning, until the number shall be reduced to thirteen ; and from that 
number not less than seven, nor more than hine names as congress shall 
direct, shall in the presence of congress be drawn out by lot, and the 
persons whose names shall be so drawn or any five of them, shall be 
commissioners or judges, to hear and finally determine the controversy, 
80 always as a major part of the judges who shall hear the cause shall 
agree in the determination : and if either party shall neglect to attend 
at the day appointed, without showing reasons, which congress shall 



FIRST ARTICLES OF CONFEDERATION. 553 

judge sufficient, or being present shall refuse to strike, the congress 
shall proceed to nominate three persons out of each state, and the 
secretary of congress shall strike in behalf of such party absent or refus- 
ing ; and the judgment aud sentence of the court to be appointed, in tlie 
manner before prescribed, shall be final and conclusive ; and if any of 
the parties shall refuse to suljmit to the authority of sucli court, or to 
appear or defend their claim or cause, the court shall nevertheless pro- 
ceed to pronounce sentence, or judgment, which shall in like manner 
be final and decisive, the judgment or sentence and other proceedings 
being in either case transmitted to congress, and lodged among the acts 
of congress for the security of the parties concerned : provided that 
every commissioner, before he sits in judgment, shall take an oath to be 
administered by one of the judges of the supreme or superior court of 
the state, where the cause shall be tried, " well and truly to hear and 
determine the matter in question, according to the best of his judgment, 
without favour, affection or hope of reward :" provided also that no 
Btate shall be deprived of territory for the benefit of the united states. 

All controversies concerning the private right of soil claimod under 
diflerent grants of two or more states, whose jurisdictions as they may 
respect such lands, and the states which passed such grants are ad- 
justed, the said grants or either of them being at the same time claimed 
to have originated antecedent to such settlement of jurisdiction, shall on 
the petition of either party to the congress of the united states, be finally 
determined as near as may be in the same manner as is before pre- 
scribed for deciding disputes respecting territorial jurisdiction between 
dillerent states. 

The united states in congress assembled shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin 
struck by their own authority, or by that of the respective states— fixing 
the standard of weights and measures throughout the United States — 
regulating the trade and managing all affairs with the Indians, not mem- 
bcTS of any of the states, provided that the legislative right of any state 
within its own limits be not infringed or violated— establishing or regu- 
latin."- post-offices from one state to another, throughout all the united 
states, and exacting such postage on the papers passing thro' the same 
as may be requisite to defray the expenses of the said office— appointing 
all officers of the land forces, in the service of the united states, except- 
ing regimental officers— appointing all the officers of the naval forces, 
and commissioning all officers whatever in the service of the united 
states— making rules for the government and regulation of the said land 
and naval forces, and directing their operations. 

The united states in congress assembled shall have authority to ap- 
point a committee, to sit in the recess of congress, to be denominated 
'■'■ A Committee of the States," and to consist of one delegate from each 
state ; and to appoint suc-h other committees and civil officers as may 



554 APPENDIX B. 

be necessar}^ for managing the general aflairs of the united states under 
their direction — to appoint one of their number to preside, provided that 
no person be allowed to serve in the office of president more than one 
year in any term of three years ; to ascertain the necessary sums of 
!Mouey to be raised for the service of the united states, and to appropri- 
ate and apply the same for defraying the pulilic expenses — to borrow 
money, or emit bills on the credit of the united states, transmitting 
every half year to the respective states an accovmt of the sums of money 
so borrowed or emitted, — to build and equip a navy — to agree upon the 
number of land forces, and to make requisitions from each state for its 
quota, in proportion to the number of w'hite inhabitants in such state ; 
which requisition shall be binding, and thereupon the legislature of each 
state shall appoint the regimental officers, raise the men and cloath, arm 
and equip them in a soldier like manner, at the expense of the united 
states ; and the officers and men so cloathed, armed and equipped shall 
march to the place appointed, and within the time agreed on by the 
united states in congress assembled : But if the united states in congress 
assembled shall, on consideration of circumstances judge proper that 
any state should not raise men, or should raise a smaller number than 
its quota, and that any other state should raise a greater number of men 
than the quota thereof, such extra number shall be raised, officered, 
clothed, armed and equipped in the same manner as the quota of such 
state, unless the legislature of such state shall judge that such extra 
number cannot be safely spared out of the same, in which case they 
shall raise officer, cloath, arm and equip as many of such extra number 
as they judge can be safely spared. And the officers and men so 
cloathed, armed and equipped, shall inarch to the place appointed, and 
within the time agreed on by the united states in congress assembled. 

The united states in congress assembled shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treaties or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defence and wel- 
fare of the united states, or any of them, nor emit bills, nor borrow 
money on the credit of the united states, nor appropriate money, nor 
agree upon the number of vessels of war, to be built or purchased, or 
the number of land or sea forces to be raised, nor appoint a commander 
m chief of the army or navy, unless nine states assent to the same : nor 
shall a question on any other point, except for adjourning from day to 
day be determined, unless by the votes of a majority of the united states 
in congress assembled. 

The Congress of the united states shall have power to adjourn to any 
time within the year, and to any place within the united states, so that 
no period of adjournment be for a longer duration than the space of six 
months, and shall publish the Journal of their proceedings montlily, ex- 
cept such ]\arts thereof relating to treaties, alliances or military opera 



FIRST ARTICLES OF CONFEDERATION. 555 

tions, as in their judgment require secrecy : and the yeas and nays of 
the delegates of each state on any qui'slion shall be entered on the Jour- 
nal, when it is desired by any delegate ; and the delegates of a state, or 
any of them, at his or their request shall be furnished with a transcript 
of the said Journal, except such parts as arc above accepted, to lay 
before the legislatures of the several states. 

Article X. The committee of the states, or any nine of them, shall 
be authorized to execute, in the recess of congress, such of the powers 
of congress as the united states in congress assembled, by the consent 
of nine states, shall from time to time think expedient to vest them 
with ; provided that no poAver be delegated to the said committee, for 
the exercise of which, by the articles of confederation, the voice of nine 
states in the congress of the united states assembled is requisite. 

Article XI, Canada acceding to this confederation, and joining in 
the measures of the united states, shall be admitted into, and entitled to 
all the advantages of this union : but no other colony shall l^e admitted 
into the same, unless such admission be agreed to by nine states. 

Article XII. All bills of credit emitted, monies borrowed and debts 
contracted by, or under the authority of congress, before the assembling 
of the united states, in pursuance of the present confederation, shall be 
leemed and considered as a charge against the united states, for pay- 
ment and satisfaction whereof the said united states, and the ^niblic 
faith are hereby solemnly pledged. 

Article XIII. Every state sliall abide by the determinations of 
the united states in congress assembled, on all questions which by this 
confederation is submitted to tliem. And the Articles of this confedera- 
tion shall be inviolably observed by every state, and the union shall be 
perpetual ; nor shall any alteration at any time hereafter be made in 
any of them ; unless such alteration be agreed to in a congress of the 
united states, and be afterwards coniirmed by the legi»latiu-es of every 

state. 

And Whereas it hath pleased the Great Governor of the "World to 
incline the hearts of the legislatures we respectively represent in con- 
gress, to approve of, and to authorize us to ratify the said articles of con- 
federation and perpetual union. Know Ye that we the uadersigued 
•ielegates, by virtue of the power and authority to us given for that pur- 
pose^ do by these presents, in the name and in behalf of our respective 
constituents, fully and entirely ratify and confirm each and every of the 
said articles of confederation and perpetual union, and all and singular 
the matters and things therein contained : And we do further solenmly 
plight and engage the faith of our respective constituents, that they sliall 
abide by the determinations of the united states in congress assembled, 
on all questions, which by the said confederation are submitted to tlicm. 
And that the articles thereof shall be inviolably observed by the suites 
we respectively represent, and that the union shal' be perpetual. In 



556 



APPENDIX B. 



witness whereof we have hereunto set our hands in Congress. Done at 
Philadelphia in the state of Pennsylvania the 9th Day of July in the 
Year of our Lord, 1778, and in the 3d 3^ear of the Independence of 
America. 



Josiah Bartlett, 

Jcilm Hancock, 
Saiauel Adams, 
Elbridge Gerry, 

William Ellery, 
Henry Marchant, 

Roger Sherman, 
Samuel Huntington, 
Oliver Wolcott, 

J as Duane, 
Fras Lewis, 

fn" Witberspoon, 

Eob' Morris, 
Daniel Robcrdeau, 
Jona. Ba3'ard Smith, 

Tbo.M'Kean,Feb.l2,1779, 
John Dickinson, May 5, 177S 

John Hanson, 

March 1st, 1781, 

Richard Henry Lee, 
John Banister, 
Thomas Adams, 

John Penn, 

July 21st, 1778, 

Henry Laurens, 
William Henry Drayton, 
Jn" Matthews, 

In° Walton, 

24th July, 1778, 



John Wentworth, jun. 
August Sth, 1778, 

Francis Dana, 
James Lovell, 
Samuel Holtcn, 

John Collins, 



Titus Hosmer, 
Andrew Adam, 

William Duer, 
Gouv"^ Morris, 

Nath' Scudder, 



William Clingan, 
Josejih Reed, 

22d July, 1778, 

Nicholas Van Dyke, 



Daniel Carroll, 

March 1st, 1781, 

Jn„ Harvie, 

Francis Lightfoot Lee, 

Corns Harnett, 
Jn" Williams, 

Richd. Hutson, 
Thos. Heyward, jun. 

EdW Telfair, 
Edw* Langworthy, 



On the part and behalf of tho 
state of New Hampshire. 

On the part and behalf of 
the state of Massachu- 
setts-Bay. 

On the part and behalf of the 
state of Rhode- Island and 
Providence Plantations. 

On the part and behalf of 
the state of Connecticut. 

On the part and behalf of 
the state of New-York. 

On the part and behalf of 
the state of New-Jersey, 
November 26th, 1778. 

On the pjart and behalf of 
the state of Pennsylvania. 

On the part and behalf of 
the state of Delaware. 

On the part and behalf of 
the state of Maryland. 

On the part and behalf of 
the state of Virginia. 

On the part and behalf of 
the state of North-Caro- 
lina. 

On the part and behalf of 
the state of South-Caro- 
lina. 

On the part and behalf of 
the state of (icorgii. 



CONSTITUTION OF THE UNITED STATES. 557 

c. 

CONSTITUTION OF THE UNITED STATES OF AMERICA. 

We the People of the United States, in order to form a more perfect 
Union, establish Justice, insure domestic Tranquillity, provide for the 
common defence, promote the general Welfare, and secure the PjU-ss- 
ings of Liberty to ourselves and our Posterity, do ordain and estalAish 
this Constitution for the United States of America. 

ARTICLE. L 

Section. 1. All legislative Powers herein granted shall be vested in 
a Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Section. 2. ' The House of Representatives shall be composed of Mem- 
bers chosen every second Year l)y the People of the several States, and 
the Electors in each State shall have the Qualifications requisite for 
Electors of the most numerous Branch of the State Legislature. 

= No Person shall be a Representative who shall not have attained to 
the Age of twenty-five Years, and been Seven Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant of 
that State in which he shall be chosen. 

'Representatives and direct Taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective Numbers, which shall be determined by adding to the 
whole Number of free Persons, including those bound to Service for a 
Term of Years, and excluding Indians not taxed, three fifths of all 
other Persons. The actual Enumeration shall be made within three 
Years after the first Meeting of the Congress of the United States, and 
within every subsequent Term of ten Years, in such Manner as they 
shall by Law direct. The Number of Representatives shall not exceed 
one for every thirty Thousand, but each State shall have at Least one 
Representative ; and until such enumeration shall be made, the State of 
New Hampshire shall be entitled to chuse three, ISIassachusetts eight, 
Rhode-Island and Providence Plantations one, Connecticut five, New- 
York six, New-Jersey four, Pennsylvania eight, Delaware one, Marv- 
iand six, Virginia ten. North Carolina five, South Carolina five, and 
Georgia three. 

' * When vacancies happen in the Representation from any State, tlie 
Executive Authority thereof shall issue Writs of Election to fill such 
Vacancies. 

> The House of Representatives shall chuse their Speaker and other 
Officers ; and shall have the sole Power of Impeachment. 



558 ■ APPENDIX C. 

Section. 3. ' The Senate of the United States shall he composed of 
two Senators from each State, chosen by the Legislature thereof, for six 
Years ; and each Senator shall have one Vote. 

'^ Immediately after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. 
The Seats of the Senators of the first Class shall be vacated at the Ey 
piration of the second Year, of the second Class at the Expiration of tht 
fourth Year, and of the third Class at the Expiration of the sixth Year, 
80 that one-third may be chosen every second Year ; and if Vacancies 
happen by Resignation, or otherwise, during the Recess of the Legisla- 
ture of any State, the Executive thereof may make temporary Appoint- 
mtnts until the next Meeting of the Legislature, which shall then fill 
such Vacancies. 

'No Person snail be a Senator who shall not have attained to the Age 
of thirty Yeais, and oeen mne Years a Citizen of the United States, and 
who shall not, when elected, be an Inhabitant of that State for which 
he shall be chosen. 

'The ViCc Piesident of the United States shall loe President of the 
Senate, but i^hail nave no V'ote, unless they be equally divided. 

' The Senate shad chuse their other Officers, and also a President pro 
tempore, in the Absence of the Vice President, or when he shall exercise 
the Office of President oi the United States. 

"The Senate shah have the sole Power to try all Impeachments. 
"When sitting for thai i urpose, they shall be on Oath or Affirmation. 
When the President oi tne United States is tried, the Chief Justice shall 
preside : And no Person shall be convicted without the Concurrence of 
two thirds of the MemOers present. 

'Judgment in Cases of Impeachment shall not extend further than to 
removal from Office, and Disqualification to hold and enjo}' any Office 
of honour. Trust or Profit under the United States : but the Party con- 
victed shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law. 

SECTiOiSr. 4. ' The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each State by the 
Legislature thereof ; but the Congress may at any time by Law make 
or alter such Regulations, except as to the places of chusing Senators. 

'The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in December, unless they shall by 
Law appoint a difierent Day. 

Section. 5. ' Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own Members, and a Majority of each shall 
constitute a Quorum to do Business ; but a smaller Number may adjourn 
from day to day, and may be authorized to compel the Attendance of 
absent Members, in such Manner, and under such Penalties as each 
House may i)rovide. 



CONSTITUTION OF THE UNITED STATES. 559 

' "Eacli House may determine the Rules of its Proccedins^^s, pumsh its 
Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member. 

'^ Each House shall keep a Journal of its Proceedings, and from time to 
time publish the same, excepting such Parts as may in their Judgment 
require Secrecy ; and the Yeas and Na3^s of the Members of eitlier 
House on any question shall, at the Desire of one tifth of those Present, 
be entered on the Journal. 

'Neither House, during the Session of Congi-ess, shall, without the 
Consent of the other, adjourn for more than three days, nor to any other 
Place than that in which the two Houses shall be sitting. 

Section. 6. ' The Senators and Representatives shall receive a Comjxjn- 
sation for theif Services, to be ascertained by Law, and paid out of the 
Treasury of the United States. They shall in all Cases, except Treason, 
Felony and Breach of the Peace, be privileged from Arrest during their 
Attendance at the Session of their respective Houses, and in going to 
and returning from the same ; and for any Speecli or Debate in either 
House, tliey shall not be questioned in any other Place. 

^No Senator or llepi-esentative shall, during the Time for which he 
was elected, be appointed to any civil Office mider the Authority of the 
United States, which shall have been created, or the Emoluments 
whereof shall have been encreased during such time ; and no Person 
holding any Office under the United States, shall be a Member of either 
House during his Continuance in Office. 

Section. 7. ' All Bills for raising Revenue shall originate in the House 
of Representatives ; but the Senate may propose or concur with Amend- 
ments as on other Bills. 

- Every Bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a Law, be presented to the President 
of the United States ; If he approve he shall sign it, but if not he shall 
return it, with his Objections to that House in which it shall have origi- 
nated, who shall enter the Objections at large on their Journal, and 
proceed to reconsider it. If a,fter such Reconsideraticm two thirds of 
that House shall agree to pass the Bill, it shall be sent, together with 
the Objections, to the other House, by which it shall likewise be recon- 
sidered, and if approved by two thirds of that House, it shall become a 
Law. But in all such Cases the Votes of both Houses shall be deter- 
mined by Yeas and Nays, and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of each House respec- 
tively. If any Bill shall not be returned by the President within ten 
Days (Sundays excepted) after it shall have been presented to him, the 
Same shall be a law, in like Manner as if he had signed it, unless the 
Congress by their Adjournment prevent its Return, in which Case it 
shall not be a law. 

' Every Order, Resolution, or Vote to which the Concurrence of the 



560 APPENDIX C. 

Senate and House of Representatives may be necessary (except a ques- 
tion of Adjournment) shall be presented to the President of the United 
States ; and before the same shall take Effect, shall be approved by him, 
or being disapproved by him, shall be repassed by two thirds of the 
Senate and House of Representatives, according to the Rules and Limi- 
tations prescribed in the Case of a Bill. 

Section. 8. The Congress shall have power 

' To lay and collect Taxes, Duties, Imposts and Excises, to pay the 
Debts and provide for the common Defence and general Welftire of the 
United States ; but all Duties, Imposts and Excises shall be uniform 
throughout the United States ; 

'To borrow Money on the credit of the United States ; 

' To regulate Commerce with foreign Nations, and among the several 
States, and Avith the Indian Tribes ; 

' To establish an uniforn Rule of Naturalization, and uniform Laws 
on the subject of Bankruptcies throughout the United States ; 

' To coin Money, regulate the value thereof, and of foreign Coin, and 
fix the Standard of Weights and Measures ; 

" To provide for the Punishment of counterfeiting the Securities and 
current Coin of the United States ; 

■■ To establish Post Offices and post Roads ; 

' To promote the progress of Science and useful Arts, by securing for 
limited Times to Authors and Inventors the exclusive Right to thcii 
respective Writings and Discoveries ; 

' To constitute Tribunals inferior to the supreme Court ; 

" To define and punish Piracies and Felonies committed on the high 
Seas, and Offences against the Law of Nations ; 

" To declare War, grant Letters of Marque and Reprisal, and make 
Rules concerning Captures on Land and Water ; 

'"To raise and support Armies, but no Ajjpropriation of Money to 
that Use shall be for a longer Term than two Years ; 

" To provide and maintain a Navy ; 

'" To make Rules for the Government and Regulation of the land and 
naval Forces ; 

'* To provide for calling forth the Militia to execute the Laws of the 
Union, suppress Insurrections and repel Invasions ; 

'^ To provide for organizing, arming, and disciplining, the Militia, and 
Jor governing such Part of them as may be employed in the Service of 
the United States, reserving to the States respectively, the Appointment 
of the Officers, and the Authority of training the Militia according to 
the Discipline prescribed by Congress ; 

" To exei-cise exclusive Legislation in all Cases whatsoever, over such 
District (not exceeding ten Miles square) as may, by Cession of particular 
States, and the Acceptance of Congress, 1)ecome the Seat of the Govern- 
ment of the United States, and to exercise like Authority over all Places 



CONSTITUTION OF THE UNITED STATES. 501 

purchased by the Couscnt of the Legislature of the State in which the 
Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock- 
yards, and other needful Buildings ; — And 

" To make all Laws which shall be necessary and proper for carrying 
into Execution the foregoing Powers, and all other Powers vested by 
this Constitution in the Government of the United States, or in au^' 
Department or Ollicer thereof. 

Section. 9. ' The Migration of Importation of such Persons as any of 
the States now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the Year one thousand eight hundred 
and eight, but a Tax or Duty may be imposed on such Importation, not 
exceeding ten dollars for each Person. 

' The Privilege of the Writ of Habeas Corpus shall not oe suspended, 
unless when in Cases of Rebellion or Invasion the public Safety may 
require it, 

'No Bill of Attainder or ex post facto Law shall be passed. 

' No Capitation, or other direct, Tax shall be laid, unless in Propor- 
tion to the Census or Enumeration herein before directed to be taken. 

» No Tax or Duty shall be laid ou Articles exported from any State. 

'No Preference shall be given by any Regulation of Commerce or 
Revenue to the Ports of one State over those of another : nor shall 
Vessels bound to, or from, one State, be obliged to enter, clear, or pay 
Duties in another. 

' No money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law ; and a regular Statement and Account 
of the Receipts and Expenditures of all public Money shall be published 
from time to time. 

" No Title of Nobility shall be granted by the United States : And no 
Person holding any Office of Profit or trust under them, shall, without 
the Consent of the Congress, accept of any present, Emolument, Otlice, 
or Title, of any kind whatever, from any King, Prince, or foreign State. 

Section. 10. ' No State shall enter into any Treaty, Alliance, or Con- 
federation ; grant Letters of Marque and Reprisal ; coin Money ; emit 
Bills of Credit ; make any Thing but gold and silver Coin a Tender in 
Payment of Debts ; pass any Bill of Attainder, ex post facto Law, or Law 
impairing the Obligation of Contracts, or grant any Title of Nobility. 

'No State shall, without the consent of the Congress, lay any Imposts 
or Duties ou Imports or Exports, except what may be absolutely neces- 
sary for executing it's inspection Laws ; and the net produce of all Duties 
and Imposts, laid by any State on Imports or Exports, shall be for the 
Use of the Treasury of the United States'; and all such Laws shall be 
subject to the Revision and Control of the Congress. 

' No State shall, without the Consent of Congress, lay any Duty of 
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any 
^ 36 



562 APPENDIX C. 

Agreement or Compact with another State, or with a foreign Power, oi 
engage in War, unless actually invaded, or in such imminent Danger as 
will not admit of Delay. 

ARTICLE. II. 

Section. 1. ' The executive Power shall be vested in a President of 
Uie United States of America. He shall hold his office during the Term 
of four Years, and, together with the Vice President, chosen for the 
same Term, be elcctetl, as follows : 

' Each State shall appoint, in such Manner as the Legislature thereof 
may direct, a Number of Electors, equal to the whole Number of 
Senators and Eepresentatives, to which the State may be entitled in the 
Congress: but no Senator or Representative, or Person holding an 
Office of Trust or Profit under the United States, shall be appointed an 
Elector. 

[* The Electors shall meet in their respective States, and vote by 
Ballot for two Persons, of whom one at least shall not be an Inhabitant 
of the same State with themselves. And they shall make a List of all 
ihe Persons voted for, and of the Number of Votes for each ; which List 
they shall sign and certify, and transmit sealed to the Seat of the 
Government of the United States, directed to the President of the Senate. 
The President of tlie Senate shall, in the Presence of the Senate and 
House of Representaatives, open all the Certificates, and the Votes shall 
then be counted. The Person having the greatest Number of Votes, 
shall be the President, if such Number be a Majority of the whole 
• Number of Electors appointed ; and if there be more than one who have 
such Majority, and have an equal Number of Votes, then the House of 
Represeiitatives shall immediately chuse by Ballot one of them for 
President ; and if no person have a Majority, then from the five highest 
on the List the said House shall in like Manner, chuse the President. 
But in chusing the President, the Votes shall be taken by States, the 
Representation from each State having one Vote ; A Quorum for this 
Purpose shall consist of a Member or Members from two thirds of the 
States, and a Majority of all the States shall be necessary to a Choice. 
In every Case, after the Choice of the President, the Person having the 
greatest Number of Votes of the Electors, shall be the Vice President. 
But if there should remain two or more who have equal Votes, the 
Senate shall chuse from them by Ballot, the Vice President.] 

^The Congress may determine the Time of chusing the Electors, and 
the Day on which they shal^ give their Votes ; which Day shall be the 
same throughout the United States. 



« This clause within brackets, has been superseded and annulled by the 12lb 
amendment. 



CONSTITUTION OF THE UNITED STATES. 563 

'No Person except a natural born Citizen, or a Citizen of the United 
States, at the time of the Adojition of this Constitution, shall be eligible 
to the Office of President ; neither shall any Person be eligible to that 
Office who shall not have attained to the Age of thirty-five Years and 
been fourteen Years a Resident within the United States. 

In Case of the Removal of the President from Office, or of his Death, 
Resignation, or Inability to discharge the Powers and Duties of the said 
Office, the same shall devolve on the Vice President, and the Congress 
may by Law provide for the Case of Removal, Death, Resignation, or 
Inability, both of the President and Vice President, declaring what 
Officer shall then act as President, and such officer shall act accordingly, 
until the Disability be removed, or a president sluiM be elected. 

' The President shall, at stated Times, receive for his Services, a 
Compensation, which shall neither be encreased nor diminished during 
the Period for which he shall ha\'e been elected, and he shall not 
receive within that Period any otiier Emolument from the United 
States, or any of them. 

' Before he enter on the Execution of his Office, he shall take the 
following Oath or Affirmation : — 

" I do solemnly swear (or affirm) that I will faithfully execute the 
" Office of President of the United States, and will to the best of my 
*' Ability, preserve, i)rotect and defend the Constitution of the United 
'^ States." 

Section. 2. ' The President sliall be Commander in Chief of the 
Army and Navy of the United States, and of the Militia of the several 
States, when called into the actual Service of the United States ; he 
may require the Opinion, in writing, of the principal Officer in each of 
the executive Departments, upon any subject relating to the Duties of 
their respective Offices, and he shall liave Power to grant Reprieves and 
Pardons for Otlences against the United States, except in Cases of 
Impeachment. 

' He shall have Power, by and with the Advice and Consent of the 
SeuiUe, to make Treaties, provided two thirds of the Senators present 
concur ; and lie shall nominate, and by and with the Advice and Consent 
of the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the Supreme Couit, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided 
for, and which shall be established by Law : but the Congress may by 
Law vest the Appointment of such inferior Officers, as they think proper, 
in the President alone, in the Courts of Law, or in the Heads of Depart- 
ments. 

' The President shall have Power to fill up all Vacancies that may 
happen during the Recess of the Senatp, by granting Commissions wliich 
shalJ expire at Hie End of their next Session. 



56i APPENDIX 0. 

Section. 3. He shall from time to time give to the Congress lutbr- 
mation of the State of the Union, and recommend to their Consideration 
such Measures as he shall judge necessary and expedient ; he may, on 
extraordinary Occasions, convene both Houses, or either of them, and 
in Case of Disagreement between them, with Respect to the Time of 
Adjournment, he may adjourn them to such Time as he shall think 
proper ; he shall Receive Ambassadors and other public Ministers : he 
shall take care that the Laws be faithfully executed, and shall Commis- 
sion all the officers of the United States. 

Section. 4. The President, Vice President and all civil Officers of 
the United States, shall be removed from Office on Impeachment for, 
and Conviction of, Treason, Bribery, or other high Crimes and Mis- 
demeanors. 

ARTICLE. Ill 

Section. 1. The judicial Power of the United States, shall be vested 
in one supreme Court, and in such inferior Courts as the Congress may 
from time to time ordain and establish. TJie Judges, both of tho 
supreme and inferior Courts, shall hold their Offices during good 
Behaviour, and shall, at stated Times, receive for their Services, a Com- 
pensation, which shali not be diminished during their Continuance in 
Office. 

Section. 2. ' The judicial Power shall extend to all Cases, in Law 
and Equity, arising under this Constitution, the Laws of the United 
States, and Treaties made, or which shall be made, under their Author- 
ity ;_to all Cases ailed iug Ambassadors, other public Ministers, and 
Consuls ;— to all Cases of admiralty and maritime Jurisdiction ;— to 
Controversies to which the United States shall be a Party ;— to Contro- 
versies between two or more States ;— between a State and Citizens of 
another State,— between Citizens of dillerent States,— between Citizens 
of the same State claiming Lands under Grants of different States, 
and between a State, or the Citizens thereof, and foreign States, Citi 
ens or Subjects, 

'In all Cases affecting Ambassadors, other public Ministers and Con- 
fiuls, and those in which a State sball be Party, the supreme Court shall 
have original Jurisdiction. In all the other Cases before mentioned, 
the supreme Court shall have appellate Jurisdiction, both as to Law and 
Fact, with such Exceptions, and under such Regulations as the Con- 
gress shall make. 

' The Trial of all Crimes, except in Cases of Impeachment, shall be hy 
Jury -, and such Trial shall be held in the State where the said Crimea 
shall have been committed ; but when not committed within any State, 
the Trial shall be at such Place or Places as the Congress may by Law 
have directed. 



CONSTITU'J'ION OF THE UNITED STATES. 565 

Section. 3. ' Treason against the United States, shall consist only ia 
levying War against them, or in adhering to their Enemies, giving them 
Aid and Comfort. No Person shall be convicted of Treason unless on 
the Testimony of two Witnesses to the same overt Act, or on Confession 
in open Court. 

' The Congress shall have Power to declare the Punishment of Treason, 
but no Attainder of Treason sliall work Corruption of Blood, or For- 
feiture except during the Life of the Person attainted. 

ARTICLE. IV. 

Section. 1. Full Faith and Credit shall be given in each State to 
the public Acts, Records, and judicial Proceedings of every other State. 
An^ the Congress may by general Laws prescribe the Manner in which 
such Acts, Records and Proceedings shall be proved, and the Effect 
thereof. 

Section. 2. 'The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States. 

"A Person charged in any State with Treason, Felony, or otlier Crime, 
who shall Ilee from Justice, and be found in another State, shall on I)e- 
maud of the executive Authority of the State from which he tied, be 
delivered up, to be removed to the State having Jurisdiction of the 
Crime. 

" No Person held to Service or Labour in one State, under the Laws 
thereof, escaping into another, shall, in Consequence of any Law or 
Regulation therein, be discharged from such Service or Labour, l)ut 
Bhall be delivered up on Claim of the Party to whom such Service or 
Labour may be due. 

Section. 3. ' New States may be admitted by the Congress into this 
Union ; but no new State shall be formed or erected within the Jurisdic- 
tion of any other State ; nor any State be formed by the Junction of two 
or more States, or Parts of States, without the Consent of the Legisla- 
tures of the States concerned as well as of the Congress. 

"-The Congress shall have Power to dispose of and make all needful 
Rules and Regulations respecting the Territory or other Property be- 
longing to the United States ; and nothing in this Constitution shall be 
eo construed as to Prejudice any Claims of the United States, or of any 
particular State. 

Section. 4. The United States shall guarantee to every State in this 
Union a Republican Form of Government, and shall protect each of 
them against Invasion, and on Application of the Legislature, or of tlia 
Executive (when the Legislature cannot be convened) against domestic 
Violence. 



566 APPENDIX C. 

4 

ARTICLE. V. 

The Congress,- whenever two thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on the 
Application of the I.cgislatures of two thirds of the several States, shall 
rail a Convention for proposing Amendments, which, in either Case, 
shall he valid to all Intents and Purposes, as Part of this Constitution, 
when i-atitied by the Legislatures of three fourths of the several States, 
or by Conventions in three fourths thereof, as the one or the other Mode 
of Ratilication ma}' be pro])osed by the Congress ; Provided that no 
Amendment which may be made prior to the Year one thousand eight 
hundred and eight shall in any Manner affect the first and fourth Clau- 
ses in the Ninth Section of tlie first Article ; and that no State, without 
its Consent, shall be deprived o£ its equal Sufli-age in the Senate. 

ARTICLE. VL 

' All Debts contracted and Engagements entered into, before the 
Adoption of this Constitution, shall be as valid against the United 
States under this Constitution, as under the Confederation. 

''This Constitution, and the Laws of the United States which shall be 
made in Pursuance thereof; and all Treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
Lav/ of the Land ; and the Judges in every State shall be bound thereby, 
any Thing in the Constitution or Laws of any State to the Contrary 
notwithstanding. 

"The Senators and Representatives bc^forp montioripd, and the Mem- 
bers of the several State Legislatures, and all executive and judicial 
Ofllcers, both of the United States and of the several States, shall be 
bound by Oath or Affirmation, to support this Constitution ; but no re- 
ligious Test shall ever be required as a Qualification to any Office or 
public Trust under the United States. 

ARTICLE. VII. 

The Ratification of the Conventions of nine States, shall be sufficient 
for the Establishment of this Constitution between the States so ratif}'- 
ing the Same. 

Done in Convention by the Unanimous Consent of the States present 
the Seventeenth Day of September in the Year of our Lord one 
thousand seven hundred and Eighty seven an'd of the Independence 
of the United States of America the Twelfth In Witness whereof 
We have hereunto subscribed our I^^ames, 

GEO. WASHINGTON— 
Presidt and dejnUy from Virginia. 



CONSTITUTION OF THE UNITED STATES 557 

NEW HAMPSHIRE. 
John Langdon, Nicholas Gilman. 

MASSACHUSETTS. 
Nathaniel Gorham, Rufus King. 

CONNECTICUT. 
"Wm. Sasil. Johnson, Roger Sherman. 

NEW YORK. 
Alexander Ha^ulton. 

NEW JERSEY. 
WiL : Livingston, David Brearley, 

"Wm. Paterson, Jona. Dayton. 

PENNSYLVANIA. 

B. Franklin, Thomas Mifflin, 

RoBT. Morris, Geo : Clymer, 

Tho : FiTzsoiONS, Jared Ingersoll, 

James Wilson, Gouv : Morris. 

DELAWARE. 

Geo : Read, Gunning Bedford, Jun'r, 

John Dickinson, Richard Bassett, 

Jaco : Broom. 

MARYLAND. 

James M'Henry Dan : of St. Thos. Jenifer, 

Danl. Carroll. 

VIRGINIxi. 
John Blair, James Madison, Jr., 

NORTH CAROLINA. i 

Wm. Blount, Ricu'd Dobbs Spaight, 

Hu. Williamson. 

SOUTH CAROLINA. 
J. RuTLEDGE, Charles Cotesworth Pinckney 

Charles Pinckney, Pierce Butler. 

GEORGIA. 
William Fetv, Abr. Baldwin. 

Attest: WILLIAM JACKSON", Secretary,^'' 



668 APPENDIX C. 



ARTICLES m ADDITION TO, AND AMENDMENT OF THE 
CONSTITUTION OF THE UNITED STATES OF AMERICA, 

Proposed hy Congress, and ratified by the Legislatures of the several States^ 
pursuant to the fifth article of the original Constitution. 

ARTICLE 1. 
Congress shall make no law respecting an establishment of religioc, or 
prohibiting the free exercise thereof; or abridging the freedom of speech, 
or of the press ; or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances. 

ARTICLE 2. 

A well regulated Militia being necessary to the security of a free State, 
the right of the people to keep and bear Arms, shall not be infdnged. 

ARTICLE III. 

No Soldier shall, in time of peace be quartered in any house, without 
the consent of the Owner nor in time of war, but in a manner to be pre- 
scribed by law. 

ARTICLE ly. 
The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio- 
lated, and no Warrants shall issue, but upon probable cause, supported 
by Oath or affirmation, and particularly describing the place to be 
searched, and the person or things to be seized. 

ARTICLE V. 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a Grand Jury, except in 
cases arising in the land or naval forces, or in the Militia, when in actual 
service in time of War or public danger ; nor shall any person be subject 
for the same offence to be twice put in jeopardy of life or limb ; nor shall 
be compelled in any Criminal Case to be a witness against himself, nor 
be deprived of life, liberty, or property, without due process of law ; nor 
shall private property be taken for public use, without just compensation, 

ARTICLE yi. 
In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wlierein the crime shall have been committed, which district shall have 
neen previously ascertained by law, and to be informed of the nature and 
cause; of the accusation : to be confronted with the witnesses aiiainst 



UNITED STATES CONSTITUTION— AMENDMENTS. 569 

him ; to have Compulsory process for obtaining "Witnesses in his favour, 
and to have the Assistance of Counsel for his defence. 

ATITICLE VII. 
In Suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no foct 
tried by a jury shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the common law. 

ARTICLE VIII. 
Excessive bail shall not be required, nor excessive fines imposed nor 
cruel and unusual punishments intlicted. 

ARTICLE IX. 
The enumeration in the Constitution, of certain rights, shai. not be 
construed to deny or disparage others retained by the peopiv.. 

ARTICLE X. 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the people, 

ARTICLE XL 
The Judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one of the United States by Citizens of another State, or by Citizens or 
Subjects of any Foreign State. 

ARTICLE XIL 

The Electors shall meet in their respective states, and vote by ballot 
for President and Vice President, one of whom^ at least, shall not be an 
inhabitant of the same state with themselves ; they shall name in their 
ballots the person voted for as President, and in distinct ballots the per- 
son voted for as Vice-President, and they shall make distinct lists of all 
persons voted for as President, and of all persons voted for as Vice-Presi- 
dent, and of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the government of the United 
States, directed to the President of the Senate ; — The President of the 
Senate shall, in presence of the Senate and House of Representatives, open 
all the certificates and the votes shall then be counted ; — Tlie person 
having the greatest number of votes for President, shall be the President, 
if such number be a majority of the whole number of Electors appointed ; 
and if no person have such majority, then from the persons having tlie 
highest numbers not exceeding three on the list of those voted for ixs 
Prciiidcnt, the House of Representatives shall choose immediately, by 



570 APPENDIX C. 

ballot, the President. But in choosing the President, the votes shall be 
taken by states, the representation from each state having one vote ; a 
quorum for this purpose shall consist of a member or members from two- 
thirds of the states, and a majority of all the states shall be necessary to 
a choice. And if the House of Picpresentatives shall not choose a Presi- 
dent whenever the right of choice shall devolve upon tliem, before the 
fourth day of March next following, then the Yice-President shall act as 
President, as in the case of the death or other constitutional disability 
of the President. The person having the greatest number of votes as 
Vice-President, shall be the Vice-President, if such number be a majority 
of the whole number of Electors appointed, and if no person have a ma- 
jority, then from the two highest numbers on the list, tlie Senate shall 
choose the Vice-president ; a quorum for the purpose shall consist of 
two-thirds of the whole number of Senators, and a majority of the whole 
number shall be necessary to a choice. But no person constitutionally 
ineligible to the office of President shall be eligible to that of Vice-Presi- 
dent of the United States. 



D. 

JEFFERSOK'S DRAFT OF KENTUCKY EESOLUTIOXS OF 

1798. 

1. Besolved, That the several States composing the United States of 
America, are not united on the principle of unlimited submission to their 
General Government ; but that, by a compact under the style and title 
of a Constitution for the United States, and of Amendments thereto, 
they constituted a General Government for special purposes, — delegated 
to that Government certain definite powers, reserving, each State to 
itself, the residuary mass of right to their own self-government ; and 
that whensoever the General Government assumes undelegated powers, 
its acts are unauthoritative, void, and of no force : that to this compact 
each State acceded as a State, and is an integral party, its co-States 
forming, as to itself, the other party : that the Government created by 
this compact, was not made the exclusive or final judge of the extent of 
the powers delegated to itself; since that would have made its discretion, 
and not the Constitution, the measure of its powers ; but that, as in all 
other cases of compact among powers having no common judge, each 
part}'- has an equal right to judge for itself, as well of infractions as cf 
the mode and measure of redress. 

2. Bcsolved, That the Constitution of the United States, having 
delegated to Congress a power to punish treason, counterfeiting the 
securities and current coin of the United States, piracies, and leioiues 
committed on the high seas, and oflenccs against the law of nations. 



KENTUCKY RESOLUTIONS. 571 

and no other crimes whatsoever ; and it heing true, as a general prii\ci- 
ple, and one of the amendments to the Constitution having also de- 
clared, that " the powers not delegated to the United Slates by the 
Constitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people," therefore the act of Congress, 
passed on the 14th day of July, 1798, and intituled, "An Act in Addition 
to the act intituled An Act for the punishment of certain crimes against 

the United States," as also the act passed by them on the day 

of June, 1798, intituled "An Act to punish frauds committed on the 
bank of the United States," (and all their other acts which assume to 
create, define, or punish crimes, other than those so enumerated in the 
Constitution,) are altogether void, and of no force ; and that the power 
to create, define, and punish such other crimes is reserved, and, of right, 
appertains solely and exclusively to the respective States, each within 
its own territory. 

3. licsolvcd, That it is true as a general principle, and is also 
expressly declared by one of the amendments to the Constitution, that 
"the powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or Lo the people ;" and that no power over the freedom of religion, freedom 
of speech, or freedom of the press being delegated to the United States 
by the Constitution, nor prohibited by it to the States, all lawful powers 
respecting the same did of right remain, and were reserved to the 
States or the people : that thus was manifested their determination to 
i-etain to themselves the right of judging how far the licentiousness of 
speech, and of the press may be abridged vdthout lessening their useful 
fieedom, and liow far those abuses which cannot be separated from 
their use should be tolerated, rather than the use be destroyed. And 
thus also they guarded against all abridgment by the United States of 
the freedom of religious opinions and exercises, and retained to them- 
selves the right of protecting the same, as this State, by a law passed on 
the general demand of its citizens, had already protected them from all 
human restraint or interference. And that in addition to this general 
principle* and express declaration, another and more special provision 
has been made by one of the amendments to the Constitution, vdiich 
expressly declares, that "Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise thereof, or 
abridging the freedom of speech, or of the press :" thereby guarding in 
the same sentence, and under the same words, the freedom of religion, 
of speech, and of the press : insomuch, that whatever violated cither, 
throws down the sanctuary which covers the others, and that 'ibels, 
falsehood, and defamation, equally with heresy and false reUgion, are 
withheld from the cognizance of Federal tribunals. That, therefore, the 
act of Congress of the United States passed on the 14th day of -Inly, 
1798. intituled "An Act in addition to the act intituled An Act for the 



572 APPENDIX D. 

punishment of certain crimes against the ITnited States," which doea 
aVii-idge the freedom of the i^ress, is not law, but is altogether void, and 
of no force. 

4. Remlved, That alien friends are under the jurisdiction and pro- 
tection of the laws of the State wherein they arc : that no power over 
them has been delegated to the United States, nor prohibited to the 
individual States, distinct from their power over citizens. And it being 
true as a general priuciple, and one of the amendments to the Constitu- 
tion having also declared, that "the jiowers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are re- 
served to the States respectively, or to the people," the act of the Con- 
gress of the United States, passed on the day of July, 170S, inti- 
tuled "An Act concerning ahens," which assumes poAvers over alien 
friends, not delegated by the Constitution, is not law, but is altogetlijer 
void, and of no force. 

5. Itemized, That in addition to the general principle, as well as the 
express declaration, that powers not delegated are reserved, another and 
more special provision, inserted in the Constitution from abundant 
caution, has declared that "the migration or importation of such 
persons as any of the States now existing shall think proper to admit, 
shall not be prohibited by the Congress prior to the year 1808 :" that 
this Commonwealth does admit the migration of alien friends, described 
as the subject of the said act concerning aliens : that a provision against 
prohibiting their migration, is a provision against all acts equivalent 
thereto, or it would be nugatory : that to remove them when migrated, 
is equivalent to a prohibition of their migration, and is, therefore, 
contrary to the said provision of the Constitution, and void. 

G. Resolved, That the imprisonment of a person under the protection 
of the laws of this Commonwealth, on his failure to obey the simple 
order of the President to depart out of the United States, as is undertaken 
by said act intituled " An Act concerning aliens," is contrary to the 
Constitution, one amendment to which has provided that " no person 
shall be deprived of liberty without due process of law ;" and that 
another having provided that "in all criminal prosecutions, tlte accused 
shall enjoy the right to public trial, by an impartial jury, to be informed 
of the nature and cause of the accusation, to be confronted with the 
witnesses against him, to have compulsory process for obtaining 
witnesses in his favor, and to have the assistance of counsel for his 
defence," the same act, undertaking to authorize the President to re- 
move a person out of the United States, who is under the protection of 
the law, on his own suspicion, without accusation, without jury, with- 
out public trial, without confrontation of the witnesses against him, 
without hearing witnesses in his favor, without defence, without counsel, 
is contrary to the provision also of the Constitution, is therefore not 
law, but utterly void, and of no force ; that transferring the power of 



KENTUCKY RESOLUTIONS OF 1798. 573 

judging any person, who is under the protection of the laws, from the 
courts to the President of the United States, as is undertaken by the 
same act concerning aliens, is against the article of the Constitution 
which provides that "the judicial power of the United States shall be 
vested in courts, the judges of which shall hold their offices during good 
behavior ;' and that the said act is void for that reason also. And it i8 
further to be noted, that this transfer of judiciary power is to that 
magistrate of the General Government who already possesses all the 
Executive, and a negative on all Legislative powers. 

7. Resolved, That the construction applied by the General Government 
(as is evidenced by sundry of their proceedings) to those parts of the Con- 
stitution of the United States which delegate to Congress a power " to 
lay and collect taxes, duties, imposts, and excises, to pay the debts and 
provide tur the common defence and general welfare of the United States," 
and "to make all laws which shall be necessary and proper for carryhig 
into execution the powers vested by the Constitution in the Government 
of the United States, or in any department or officer thereof," goes to 
the destruction of all limits prescribed to their power by the Constitu- 
tion : that words meant by the instrument to be subsidiary only to the 
execution of limited powers, ought not to be so construed as themselves 
to give unlimited powers, nor a part to be so taken as to destroy the 
whole residue of that instrument : that the proceedings of the General 
Government under color of these articles, will \ye a tit and necessary 
subject of revisal and correction, at a time of greater tranquillity, 
while those specified in the preceding resolutions call for immeuiate 
redress. 

8. Resolved, That a Committee of conference and correspondence be 
appointed, who shall have in charge to communicate the preceding reso- 
lutions to the Legislatures of the several States ; to assure them that this 
commonwealth continues in the same esteem of their friendshii) and 
uni(jn which it has manifested from that moment at which a common dan- 
ger first suggested a common union : that it considers union for specified 
national purposes, and partictilarly to those specified in their late Federal 
compact, to be friendly to the peace, happiness and prosperity of all the 
States : that faithful to that compact, according to the plain intent and 
meaning in which it was understood and acceded to by the several parties, 
it is sincerely anxious for its preservation : that it does also believe, that 
to take from the States all the powers of self-government and IransfeT 
them to a general and consolidated government, without regard to the 
Bpecial delegations and reservations solemnly agreed to in that compact, 
is not for the peace, happiness or prosperity of these States ; and that 
therefore this commonwealth is determined, as it doubts not its co-States 
are, to submit to undelegated, and consequently unlimited powers in no 
man, or body of men on earth : that in cases of an abuse of the delegated 
powers, the members of the General Government, being chosen by the 



574 APPENDIX D. 

people, a change by the people would be the constitutional remedy ; but, 
where powers are assumed which have not been delegated, a nulliticatiou 
of the act is the rightful remedy : that every State has a natural right in 
cases not within the compact, (casus non foederis,) to nullify of their own 
authority all assumptions of power by others within their limits : that 
without this right, they would be under the dominion, absolute and 
unlimited, of whosoever might exercise this right of judgment for them: 
that nevertheless, this commonwealth, from motives of regard and re- 
spect for its co-States, has wished to communicate with them on the sub- 
ject : that with them alone it is proper to communicate, they alone being 
parties to the compact, and solely authorized to judge in the last resort 
of the powers exercised under it, Congress being not a party, but merely 
the creature of the compact, and subject as to its assumptions of power 
to the final judgment of those ])y whom, and for whose use itself and its 
powers were all created and modified : that if the acts before specified 
should stand, these conclusions would flow from them ; that the General 
Government may place any act they think proper on the list of crimes, 
and punish it themselves whether enumerated or not enumerated by the 
Constitution as cognizable by them : that they may transfer its cogni- 
zance to the President, or any other person, who may himself be the 
accuser, counsel, judge and jury, whose susjncions may be the evidence, 
his order the sentence, his officer the executioner, and his breast the sole 
record of the transaction : that a very numerous and valuable descrip- 
tion of the inhabitants of these States being, by this precedent, reduced, 
as outlaws, to the absolute dominion of one man, and the barrier of the 
Constitution thus swept away from us all, no rampart now remains 
against the passions and the powers of a majority in Congress to protect 
from a like exportation, or other more grievous punishment, the minority 
of the same body, the legislatures, judges, governors and counsellors of 
the States, nor their other peacealjle inliabitants, who may venture to 
reclaim the constitutional rights and liljerties of the States and })eople, 
or who for other causes, good or bad, may be obnoxious to the views, or 
marked by the suspicions of the President, or be thought dangerous to 
his or their election, or other iutei-ests, public or personal : that the 
friendless alien has indeed been selected as the safest subject of a first 
experiment ; but the citizen will soon follow, or rather, has already fol- 
lowed, for alread}' has a sedition act marked him as its prey : that these 
and successive acts of the same character, unless arrested at the thresh- 
old, necessarily drive these States into revolution and blood, and will 
furnish new calumnies against republican government, and new pretexts 
for those who wish it to be believed that man cannot be governed but by 
a rod of iron ; that it would be a dangerous delusion were a conlidi-nce 
in the men of our choice to silence our fears for the safety of our rights : 
tliat confidence is everywhere the parent of despotism — free government 
is Ibun U'(] in j('aU)Usy, and not in eonlideuce ; it is jealousy and not coa- 



KENTUCKY RESOLUTIONS OF 1798. 575 

Gdence which prescribes limited Constitutions, to bind down those whom 
■we are obliged to trust with power : that our Constitution has accord - 
inglj'- fixed the limits to which, and no further, our eontldence may go ; 
and let the honest advocate of confidence read the Alien and Sedition 
Acts, and say if the Constitution has not been wise in fixing limits to 
the government it created, and whether we should be wise in destroying 
those limits. Let him say what the Government is, if it be not a tyranny, 
which the men of our choice have conferred on our President, and Iho 
President of our choice has assented to, and accepted over the friendly 
strangers to whom the mild spirit of our country and its laws have 
pledged hospitality and protection : tluat the men of our choice have 
more respected the bare sut;piciuns of the President, than the solid right 
of innocence, the claims of justification, the sacred force of truth, and 
the forms and substance of law and justice. In questions of power, then, 
let no more be heard of confidence in man, but bind him down from mis- 
chief by the chains of the Constitution. That this Commonwealth does 
therefore call on its co-States for an expression of their sentiments on 
the acts concerning aliens, and for the panishment of certain crimes 
hereinbefore specified, plainly declaring whether these acts are or are not 
authorized by the Federal compact. And it doubts not that their sense 
will be so announced as to prove their attachment unaltered to limited 
government, whether general or particular. And that the rights and 
liberties of tlieir co-States will be exposed to no dangers by remaining 
embarkexl in a common bottom with their own. That they will concur 
with this Commonwealth in considering the said acts as so palpably 
against the Constitution as to amount to an undisguised declaration that 
that compact is not meant to be the measure of the powers of the General 
Government, but that it will proceed in the exercise over these States, 
of all powers whatsoever : that they will view this as seizing the rights 
of the States, and consolidating them in the hands of the General Govern- 
ment, with a power assumed to bind the States, (not merely as the cases 
made Federal, (casus foederis,) but) in all cases whatsoever, by laws 
made, not with their consent, but by others against their consent : that 
this would be to surrender the form of government we have chosen, and 
live under one deriving its powers from its own will, and not from our 
authority ; and that the co-States, recurring to their natural right in 
cases not made Federal, will concur in declaring these acts void, and of 
no force, and will each take measures of its ov^^n for providing that 
neither tliese acts, nor any others of the General Government not plainly 
and intentionally authorized by the Constitution, shall be exercised within 
their respective territories. 

9. Besolved, That the said committee be authorized to communicate 
by writing or personal conferences, at any times or places whatever, with 
any person or persons who may be appointed by any one or more cc- 



576 APPENDIX E. 

States to correspond or confer with them ; and that they lay their pro- 
ceedings before the next session of Assembly.* 



E. 

VIRGINIA EESOLUTIONS OF 1798-99. 

DEFINING THE RIGHTS OF THE STATES, AND MADISON'S REPORT 

THEREON. 

In the Viniiyiia House of Delegates, Fridan^ Dec. 21, 1798. 

Besolved, That the General Assembly of Virginia, doth unequivocally 
express a firm resolution to maintain and defend the Constitution of 
the United States, and the Constitution of this State, against every 
aggression either foreign or domestic ; and that they will support the 
Government of the United States in all measures warranted by the 
former. 

That this Assembly most solemnly declares, a warm attachment 
to the Union of the States, to maintain which it pledges its 
powers ; and, that for this end, it is their duty to watch over and oppose 
every infraction of those principles which constitute the only basis of thai 
Union, because a faithful observance of them, can alone secure its exist- 
ence and the public happiness. 

That this Assembly doth explicitly and peremptorily declare, that it 
views the powers of the Federal Government, as resulting from the 
compact to which the States ai'e parties, as limited by the plain sense 
and intention of the instrument constituting that compact, as no further 
valid than they are authorized by the grants enumerated in that com- 
pact ; and that, in case of a deliberate, palpable, and dangerous exercise 
of other powers, not granted by the said compact, the States, who are 
parties thereto, have the right, and ai'e in duty bound, to interpose, for 
arresting the progress of the evil, and for maintaining, within their 
respective limits, the authorities, rights, and liberties, appertaining to 
them. 

That the General Assembly doth also express its deep regret, that a 
spirit has, in sundry instances, been manifested by the Federal Govern- 
ment, to enlarge its powers by forced constructions of the constitutional 
diarter which defines them ; and that indications have appeared of a 
design to expound certain general phrases (which, having been copied 
from the very limited grant of powers in the former Articles of Coa 
federation, were the less liable to be misconstrued) so as to destroy the 
meaning and effect of the particular enumeration which necessarily ex- 
plains and limits the general i)hrases^ and so as to consolidate the States, 



* Jefferson's Complete Works, vol. 9, page 464. 



TIRGIXIA EESOLUTIOXS, 1798-99. 577 

by clcgreefe into one Sovereigniy, the obvious teudcucy and inev- 
itable result of which would be, to transform the present Republicair 
system of the United States into an absolute, or, at best, a mixed mon- 
aicliy. 

That the General Assembly doth particularly protest against the 
palpable and alarming infractions of the Constitution, in the two late 
cases of the "Alien and Sedition Acts," passed at the last session of 
Congress ; the first of which, exercises a power nowhere delegated to the 
Federal Government, and which by uniting Legislative and Judicial 
powers to those of Executive, subverts the general principles of free 
government, as well as the particular organization and positive provi- 
sions of the Federal Constitution ; and the other of which acts, exer- 
cises in like manner, a power not delegated by the Constitution, but on 
the contrary, expressly and positively forbidden by one of the amend- 
ments thereto ; a power, which more than any other, ought to produce 
universal alarm, because it is levelled against the right of freely examin- 
ing public characters and measures, and of free communication among 
the people thereon, which has ever been justly deemed, the only cflectual 
guardian of every other right. 

That this State having by its Convention, which ratified the Federal 
Constitution, expressly declared, that among other essential rights, 
"the liberty of conscience and the press cannot be cancelled, abridged, 
restrained, or modified by any authority of the United States," and 
from its extreme anxiety to guard these rights from every possible attack 
of sophistry and ambition, having with other States, recommended an 
amendment for that purpose, which amendment v.-as, in due time, 
annexed to the Constitution, it would mark a reproachful incon- 
sistency, and criminal degeneracy, if an indifierence were now shov,'n, 
to the most palpable violation of one of the rights, thus declared and 
secured ; and to the establishment of a precedent which may be fatal to 
the other. 

That the good people of this Commonwealth, having ever felt, and 
continuing to feel the most sincere aflection for their brethren of the 
other States ; the truest anxiety for establishing and perpetuating the 
union of all ; and the most scrupulous fidelity to that Constitution, which 
is the pledge of mutual friendship, and the instrument of mutual happi- 
ness ; the General Assembly doth solemnly appeal to the like disposi- 
tions in the other States, in confidence, that they will concur with this 
Commonwealth, in declaring, as it does hereby declare, that the acta 
aforesaid, are unconstitutional ; and, that tlie necessary and proper 
measures will be taken by each for co-operating with this State, in 
maintaining unimpaired the authorities, rights, and liberties, reserved 
to the States respectively, or to the people. 

That the Governor be desired to transmit a copy of the foregoing 
resolutions to the Executive authority of each of the other Slates, with 
37 



578 APPENDIX E. 

a request, that tlie same may be communicated to the legislature thereof; 
and that a copy be furnished to each of the Senators and Picpresentativea 
representing this State in the Congress of the United States, 

Attest : JOHN STEWART. 

1798, December 24th. Agreed to by the Senate. 

n. Brooke. 

A true copy from the original deposited in the office of the General 
Assembly. John Stewart, Kccxjer of Bolls. 



MR. MADISON'S REPORT OX THE VIRGINIA 
RESOLUTIONS. 

ViRGiKiA. — House of Delegates, Session of 1799-1800. 
Report of the Committee to whom were referred the communications of 
various States, relative to the resolutions of the last General Assembly 
of this State, concerning the Alien and Sedition Laws. 

"Whatever room might be found in the proceedings of some of the 
States, who have disapproved of the resolutions of the General Assem- 
bly of this Commonwealth, passed on the 21st day of December, 1798, 
for painful remarks on the spirit and manner of those proceedings, it 
appears to the Committee most consistent with the duty as well as 
dignity of the General Assembly, to hasten an oblivion of every circum- 
stance, which might be construed into a diminution of mutual respect, 
confidence and aflection, among the members of the Union. 

The Committee have deemed it a more useful task to revise, with a 
critical eye, the resolutions which have met with their disapprobation ; 
to examine fully the several objections and arguments which have ap- 
peared against them ; and to inquire whether there can be any errors of 
fact, of principle, or of reasoning, which the candor of the General Assem- 
bly ought to acknowledge and correct. 

The first of the resolutions is in the words following : 

'■'•Resolved, That the General Assembly of Virginia doth unequivo- 
cally express a firm resolution to maintain and defend the Constitution 
of the United States, and the Constitution of this State, against every 
aggression, either foreign or domestic, and that they will support the 
Government of the United States in all measures warranted by the 
former." 

No unfxvorable comment can have been made on the sentiments here 
expressed. To maintain and defend the Constitution of the United 
States, and of their own State, against every aggression, both foreign 
and domestic, and to support the Government of the United States in 
all measures warranted by their Constitution, are duties which the 



MR. MADISON'S REPORT. 579 

GeiiGral Assembly ought alwa3's to feel, and to which, on such an occa- 
sion, it was evidently proper to express their sincere and tirm adherence. 

In their next resolution — " The General Assembly most solemnly 
declares a warm attachment to the Union of the States, to maintain 
which, it pledges all its powers ; and that, for this end, it is their duty 
to watch over and oppose every infraction of those principles, which 
constitute the only basis of that Union, because a fxithful observance of 
them can alone secure its existence and the public happiness." 

The observation just made is equally applicable to this solemn 
declaration of warm attachment to the Union, and this solemn pledge 
to maintain it ; nor can any question arise among enlightened friends of 
the Union, as to the duty of watching over and opposing every infraction 
of those principles which constitute its basis, and a faithful observance 
of which, can alone secure its existence, and the public happiness thereon 
dejDending. 

The third resolution is in the words following : 

" That this Assembly doth explicitly and peremptorily dedare, that it 
views the powers of the Federal Government, as resulting from the 
compact, to which the States are parties, as limited by the plain sense 
and intention of the instrument constituting that compact — as no further 
valid than they are authorized by the grants enumerated in that com- 
pact ; and that In case of a deliberate, palpable and dangerous exercise 
of other powers, not granted by the said compact, the States who are 
parties thereto, have the right, and are in duty bound, to interpose, for 
arresting the progress of the evil, and for maintaining within their 
respective limits, the authorities, rights and liberties appertaining to 
them." 

On this resolution, the committee have bestowed all the attention 
which its importance merits : they have scamied it not merely with a 
strict, but with a severe eye ; and they feel confidence in pronouncing, 
that, in its just and fair construction, it is unexceptionably true in its 
several positions, as well as constitutional and conclusive in its infer- 
ences. 

The resolution declares; first, that "it views the powers of the 
Federal Government, as I'csulting frrom the compact to which the 
States are parties," in other words, that the Federal powers are derived 
from the Constitution ; and that the Constitution is a compact to which 
the States are parties. 

Clear as the position must seem, that the Federal powers are derived 
from the Constitution, and from that alone, the committee are not 
unapprized of a late doctrine, which opens another source of Federal 
powers, not less extensive and important, than it is new and unexpected. 
The examination of this doctrine will be most conveniently connected 
with a review of a succeeding resolution. The committee satisfy them- 
selves here with briefly remarking, that in all the contemporary discus- 



680 ArPEXDIX K 

Gions and comments which the Constitution vmderwent, it was constantly 
justified and recommended, on the ground that the powers not given to 
the Government, were withheld from it ; and, that if any doubt could 
have existed on this subject, under the original text of the Constitution, 
it is removed, as far as words could remove it, by the 12th amendment, 
now a part of the Constitution, whicli expressly declares, "'that the 
])ower3 not delegated to the United States, by the Constitution, ntr 
prohibited by it to the States, are reserved to the States respectively, or 
to tlie people." 

The other position involved in this branch of the resolution,, namely, 
that "the States are parties to the Constitution or compact," is, in the 
judgment of the committee, equally free from objection. It is indeed 
ti'ue, that the term "States," is sometimes used in a vague sense, and 
sometimes in different senses, according to the subject to which it is 
ai)plied. Thus, it sometimes means the separate sections of territory 
occupied by the political societies within each : sometimes the particular 
governments, established by those societies ; sometimes those societies 
as organized into those particular governments ; and lastly^ it means 
the people composing those political societies, in their highest sovereign 
capacity. Although it might be wished that the perfection of language 
admitted less diversitj^ in the signification of the same words, yet little 
inconvenience is produced by it, where the true sense can be collected 
with certainty from the difierent applications. In the present instance, 
Avhatcver different construction of the term "States," in the resolution 
may have been entertained, all will at least concur in that last mentioned ; 
because in that sense, the Constitution was submitted to the "States," 
ia that sense the " States" ratified it : and in that sense of the term 
" States," they are consequently parties to the compact from which the 
powers of the Federal Government result. 

The next position is, that the General Assembly views the powers of 
the Federal Government, "as limited by the plain sense and intention 
of the instrument constituting that compact," and " as no farther valid 
than they are authorized by the grants therein enumerated." It does 
not seem possible, that any just objection can lie against either of these 
clauses. The first amounts merely to a declaration, that the comimct 
ought to have the interpretation plainly intended by the parties to it ; 
the other to a declaration, that it ought to have the execution and effect 
intended by them. If the powers granted be valid, it is solely because 
they are granted , and if the granted powers are valid, because granted, 
all other powers not granted, must not be valid. 

The resolution having taken this view of the Federal compact, pro- 
ceeds to infer, " That in case of a deliberate, palpable, and dangerous 
exercise of other powers, not granted by the said compact, the States, 
who are parties thereto, have the right and are in duty bound to inter- 
pose for arresting the progress of the evil, and for maintaining witliin 



MR. MADISON'S REPORT. 581 

tSeir respective limits, the authorities, rights, and liberties appertaining 
to them." 

xt appears, to your committee to be a plain principle, founded h\ 
common sense, illustrated by common practice, and essential to the 
nature of compacts — that, where resort can be had to no tribunal 
superior to the authority of the parties, the parties themselves must be 
the rightful judges in the last resort, whether the bargain made has been 
pursued or violated. The Constitution of the United States, was framed 
by the sanction of the States, given by each in its sovereign capacity. 
It adds to the stability and dignity, as well as to the authority of tlic 
Constitution, that it rests on this legitimate and solid foundation. The 
Sttttes, then, being the parties to the constitutional compact, and in 
tlivjir sovereign capacity, it follows of necessity, that there can be no 
tribunal above their authority, to decide in the last resort, whettei the 
compact made by them be violated ; and, consequently, that, as tlie 
parties to it, they must themselves decide in the last resort, such 
questions as maybe of sufficient magnitude to require their interposition. 

It does not follow, however, that because the States, as sovereign 
parties to their constitutional compact, must ultimately decide whether 
It nas been violated, that such a decision ought to be interposed, either 
la a hasty manner, or on doubtful and inferior occasions. Even in the 
ch.se of ordinary conventions between different nations, where, by the 
stiict rule of interpretation, a breach of a part may be deemed a breach 
oi the whole ; every part being deemed a condition of every other part, 
atid of the whole, it is always laid down that the breach must be both 
Wilful and material to justify an application of the rule. But in the case 
oi an intimate and constitutional union, like that of the United States, 
It is evident that the interposition of the parties, in their sovereign 
capacity, can be called for by occasions only, deeply and essentially 
nrfecting the vital principles of their political system. 

The resolution has, accordingly, guarded against any misapprehension 
trf its object, by expressly requiring for such an interposition, " the case 
Tjf a deliberate, palpable, and dangerous breach of the Constitution, by 
ihe exercise of powers not granted by it." It must be a case not of a 
light and transient nature, but of a nature dangerous to the great pur- 
poses for which the Constitution was established. It must be a case, 
moreover, not obscure or doubtful in its construction, but plain and 
palpable. Lastly, it must be a case not resulting from a partial con- 
sideration, or hasty determination ; but a case stampt with a final con 
sideration and deliberate adherence. It is not necessary, because th. 
resolution does not require, that the question should be discussed, how 
far the exercise of any particular power, ungranted by the Constitution, 
wou.a justify the interposition of the parties to it. As cases might 
easily be stated, which none would contend ought to fall within that 
description — cases, on the other hand, might with equal ease, be stated. 



582 ArrENDix e 

80 flagrant and so fatal, as to unite eveiy opinion in placing them -within 
the description. 

But the resolution has done more than guard against misconstruction, 
by expressly referring to cases of a deliberate, palpal)le, and dangerous 
nature. It specifies the object of the interposition which it contem- 
plates, to be solely that of arresting the progress of the evil of usiu'pa- 
tion, and of maintaining the authorities, rights and liberties appertaining 
to the States, as parties to the Constitution. 

From this view of the resolution, it would seem inconceivable that it 
can incur any just disajiprobation from those who, laying aside all 
momentary impressions, and recollecting the genuine source and object 
of the Federal Constitution, shall candidly and accurately interpret the 
meaning of the General Assemljly. If the deliberate exercise of dan- 
gerous powers, palpably withheld by the Constitution, could not justify 
the parties to it, in interposing even so far as to arrest the progress of 
the evil, and tliereby to pi-eserve the Constitution itself, as well as to 
provide for the safety of the parties to it, there would be an end to all 
relief from usurped power, and a direct subversion of the rights specified 
or recognized under all the State Constitutions, as well as a plain denial 
of the fundamental principle on which our independence itself was 
declared. 

But it is objected, that the Judicial authority is to be regarded as the 
sole expositor of the Constitution in the last resort ; and it may be asked 
for what reason, the declaration by the General Assembly, supposing it 
to be theoretically true, could be required at the present day, and in so 
solemn a manner. 

On this objection it might be observed : first, that there may be 
instances of usurped power, which the forms of the Constitution would 
never draw within the control of the Judicial department ; secondly, 
that if the decision of the Judiciary be raised above the authority of the 
sovereign parties to the Constitution, the decisions of the other depart- 
ments, not carried by the forms of the Constitution before the Judiciary, 
must be equally autlioritative and final with the decisions of that de- 
partment. But the jiroper answer to the objection is, that the resolu- 
tion of the General Assembly relates to those great and extraordinary 
cases, in which all the forms of the Constitution may prove ineffectual 
against infractions dangerous to the essential rights of the parties to it. 
The resolution supposes that dangerous powers not delegated, may not 
ocly be usurped and executed by the other departments, but that the 
Judicial department, also, may exercise or sanction dangerous powers 
beyond the grant of the Constitution ; and, consequentl}', that the ulti- 
mate right of the parties to the Constitution, to judge whether the com- 
pact has been dangerously violated, must extend to violations by one 
delegated authority, as well as by another ; by the Judiciary, as well as 
by the Executive, or the Legislative. 



MR. MADISON'S EErORT. 583 

However true, therefore, it may be that the Judicial department is, in 
all questions submitted to it by the forms of the Constitution, to decide 
in the last resort, this resort must necessarily be deemed the last in rela- 
tion to the authorities of the other departments of the Government ; not 
in relation to the rights of the parties to the constitutional compact, 
from ^yhich the Judicial as well as the other departments hold their 
delegated trusts. On any other hypothesis, the delegation of .1 udicial 
power would annul the authority delegating it ; and the concurrence of 
this department with the others in usurped powers, might subvert 
forever, and beyond the possible reach of any rightful remedy, the very 
Constitution, which all were instituted to preserve. 

The truth declared in the resolution being established, the expediency 
of making the declaration at the present day, may safel}^ be left to the 
temperate consideration and candid judgment of the American public. 
It will be remembered, that a frequent recurrence to fundamental prin- 
ciples, is solemnly enjoined by most of the State Constitutioits, and par- 
ticularly by our own, as a necessary safeguard against the danger of 
degeneracy to which Republics are liable, as well as other Govern- 
ments, though in a less degree than others. And a fair comparison of 
the political doctrines not unfrequent at the present day, with those 
which characterized the epoch of our Revolution, and which form the 
basis of our Republican Constitutions, will best determine whether the 
declaratory recurrence here made to those principles, ought to be viewed 
as unseasonable and improper, or as a vigilant discharge of an impor- 
tant duty. The authority of Constitutions over Governments, and of 
the sovereignty of the people over Constitutions, are truths which are at 
all times necessary to be kept in mind ; and at no time, perhaps, more 
necessary than at present. 

The fourth Resolution stands as follows : 

" That the General Assembly doth also express its deep regret, that a 
spirit has in sundry instances, been manifested by the Federal Govern- 
ment, to enlarge its powers by forced constructions of the constitufonal 
charter which defines them ; and that indications have appeared of a 
design to expound certain general phrases (which, having been copied 
from the very limited grant of powers in the former Articles of Confedera- 
tion, were the less liable to be misconstrued,) so as to destroy tlie mean- 
ing and effect of the particular enumeration which necessarily explains, 
and limits the general phrases ; and so as to consolidate the States by 
degrees, into one sovereignty, the obvious tendency and inevitable result 
of which would be to transform the present republican system of the 
United States into an absolute or at best a mixed monarchy." 

The first question here to be considered is, whether a spirit has in sun- 
dry instances been manifested by the Federal Government to enlarge its 
powers by forced constructions of the constitutional charter. 

The General Assembly having declared their opinion, merely, by re 



584 ArrEXDIX B. 

gretting In general terms, that forced constructions for enlarging tha 
Federal powers have taken place, it does not appear to the committee 
necessary to go into a specification of every instance to which the reso- 
lution may allude. The Alien and Sedition acts being particularl 
named in a succeeding resolution, are of course to be understood as in. 
eluded in the allusion. Omitting others which have less occupied pub- 
lic attention, or l)cen less extensively regarded as unconstitutional, the 
resolution may be presumed to refer particularly to the Bank Law, 
which from the circumstances of its passage, as well as the latitude of 
construction on which it is founded, strikes the attention with singular 
force, and the carriage tax, distinguished also by circumstances in its 
history having a similar tendenc3\ Those instances alone, if resulting 
from forced construction, and calculated to enlarge the powers of the 
Federal Government, as the committee cannot but conceive to be the 
case, sufficiently warrant this part of the resolution. The committee 
have not thought it incumbent on them to extend their attention to 
laws which have been objected to, rather as varying the constitutional 
distribution of powers in the Federal Government, than as an absolute 
enlargement of them ; because instances of this sort, however important 
in their principles and tendencies, do not appear to fall strictly within 
the text under review. 

The other questions presenting themselves are — 1. Whether indica- 
tions have appeared of a design to expound certain general phrases 
copied from the "Articles of Confederation," so as to destroy tl^ effect 
of the particular enumeration explaining and limiting their meaning. 
2. Whether this exposition would by degrees consolidate the States into 
one sovereignty. 3. Whether the tendency and result of this consolida- 
tion ^v^ould be to transform the Eepublicah system of the United States 
into a monarehj'. 

1. The general phrases here meant must be those "of providing for 
the common defence and general welfare." 

In the "Articles of Confederation" the phrases are used as follows, in 
Art. VIII. "All charges of war, and all other expenses that shall be 
incurred for the common defence and general welfare, and allowed by 
the United States in Congress assembled, shall be defrayed out of a com- 
mon treasury, which shall be supplied bj- the several States, in propor- 
tion to the value of all land within each State, granted to, or surveyed 
for any person, as sucli land and the buildings and improvements 
thereon shall be estimated, accordhig to such mode as the United States 
in Congress assembled, shall from time to time direct and appoint " 

In the existing Constitution, they make the following part of Sec. h : 
" The Congress shall have power to lay and collect taxes, duties, im- 
posts and excises, to pay the debts, and provide for the common defence 
and general welfare of the United States." 

This similarity in the use of these iihrases in the two great Fedeia.1 



MR. MADISON'S REPORT. 585 

charters, might well be considered, as rendering their meaning less 
liable to be misconstrued in the latter : because it will scarcely be said, 
that in the former, they were ever understood to be either a general 
grant of power, or to authorize the requisition or application of money 
by the old Congress to the common defence and general welfare, except 
in cases afterwards enumerated, which explained and limited their 
meaning ; and if such was the limited meaning attached to these phrase 
in the very instrument revised and remodeled by the present Constitution, 
it can never be supposed that when copied into this Constituiion, a dif- 
ferent meaning ought to be attached to them. 

That, notwithstanding this remarkable security against misconstruc- 
tion, a design has been indicated to expound these phrases in the Consti- 
tution, so as to destroy the effect of the particular enumeration of pow- 
ers by which it explains and limits them, must have foUen under the 
observation of those who have attended to the course of public trans- 
actions. Not to multiply proofs on this subject, it will suffice to refer to 
the debates of the Federal legislature, in which arguments have on dif- 
ferent occasions been drawn, with apparent effect, from these phrases, in 
their iudetlnite meaning. 

To these indications might be added, without looking farther, the 
official report on manufactures by the late Secretary of the Treasury, 
made on the 5th of December, 1791 ; and the report of a Committee of 
Congress, in January, 1797, on the promotion of agriculture. In ihe 
first of these it is expressly contended to belong " to the discretion of 
the jSTatioual Legislature to pronounce upon the objects which concern 
the general welfare, and for which, under that description, an appropria- 
tion of money is requisite and proper. And there seems to be no room 
for a doubt, that whatever concerns the general interests of learning, of 
agriculture, of manufactures, and of commerce, is within the sphere of 
National Councils, as far as regards an application of money." The 
latter report assumes the same latitude of power in the National Coun- 
cils, and applies it to the encouragement of agriculture, by means of a 
society to be established at the seat of Government. Although neither 
of these reports may have received the sanction of a law carrying it into 
effect ; yet, on the other hand, the extraoixlinary doctrine contained in 
Doth, has passed without the slightest positive mark of disapprobation 
from the authority to which it was addressed. 

Now, whether the phrases in question be construed to authorize every 
measure relating to the common defence and general welfare, as con- 
tended by some ; or every measure only in which there might be au 
application of money, as suggested by the caution of others ; the effect 
must substantially be the same, in destroying the import and force of 
the particular enumeration of powers which follow these general phrases 
in the Constitution. For, it is evident, that there is not a single power 
whatever, which may not have some reference to the common defence. 



686 APPENDIX E. 

or the general welfare ; nor a power of any magnitude, wliicli, in its 
exercise, does not involve or admit an application of money. The 
Government, therefore, which possesses power in either one or other of 
these extents, is a Government Avithout the limitations formed by a 
particular enumeration of powers ; and consequently, the meaning and 
effect of this particular enumeration, is destroyed by the exposition 
given to these general phrases. 

This conclusion will not be affected by an attempt to qualify the 
power over the " general welfare, " by referring it to cases where the 
general welfare is beyond the reach of the separate provisions by the 
individual States ; and leaving to these their jurisdictions in cases, to 
which their separate provisions may be competent. For, as the autho- 
rity of the individual States must in all cases be incompetent to general 
regulations operating through the whole, the authority of the United 
States would be extended to ever}^ object relating to the general welfare, 
which might, by any x)ossibilit3^, be i^rovided for by the general autho- 
rity. This qualifying construction, therefore, would have little, if any 
tendency, to circumscribe the power claimed under the latitude of the 
term "general welfare." 

The true and fair construction of this expression, both in the original 
and existing Federal compacts, appears to the committee too obvious to be 
mistaljen. In both, the Congress is authorized to provide money for the 
common defence and general welfare. In both, is subjoined to this 
authority, an enumeration of the cases, to which their powers shall 
extend. Money cannot be applied to the general welfare, otherwise than 
by an application of it to some particular measure, conducive to the 
general welfare. Whenever, therefore, money has been raised by the 
general authority, and is to be applied to a particular measure, a ques- 
tion arises whether the particular measure be within the enumerated 
authorities vested in Congress. If it be, the money requisite for it, may 
be applied to it ; if it be not, no such application can be made. This 
fair and obvious interpretation coincides with, and is enforced by, the 
clause in the Constitution, which declares, that " no money shall be drawn 
from the treasury, but in consequence of appropriations made bylaw." 
An appropriation of money to the general welfare, would be deemed 
rather a mockery than an observance of this constitutional injunction. 

2. "Whether the exposition of the general phrases' here combatted, 
would not, by degrees, consolidate the States into one Sovereignty, is a 
question, concerning which the Committee can perceive little room for 
difference of opinion. To consolidate the States into one sovereignty, 
nothing more can be wanted than to supersede their respective sovereign- 
ties in the cases reserved to them, by extending the sovereignty of the 
United States, to all cases of the "general welfare," that is to say, to all 
cases whatever. 

3. That the obvious tendency and inevitable result of a consolidation 



MR. MADISON'S REPORT. 537 

of the States into one sovereignty, would be to transform the republican 
system of the United States into a monarchy, is a point which seems to 
have been sufficiently decided by the general sentiment of America. In 
almost every instance of discussion relating to the consolidation in ques- 
tion, its certain tendency to pave the way to monarchy, seems not to 
have been contested. The prospect of such a consolidation has formed 
the only topic of controversy. It would be unnecessary, therefore, for 
the committee to dwell long ou the reasons which support the position 
of the General Assembly. It may not be improper, however, to remark 
two consequences, evidently tlowing from an extension of the Federal 
power to every sul)ject falling within the idea of the " general welfare." 

One consequence must be to enlarge the sphere of discretion allotted 
to the Executive Magistrate. Even within the legislative limits prop- 
erly defined by the Constitution, the dilHcuUy of accommodating legal 
regulations to a country so great in extent, and so various in its circum- 
stances, has been much felt ; and has led to occasional investments of 
power in the Executive, which involve i)erhaps as large a portion of dis- 
cretion as can be deemed consistent with the nature of the Executive 
trust. In proportion as the objects of legislative care might be multi- 
plied, Avould the time allowed for each be diminished, and the difficulty 
of providing uniform and particular regulations for all, be ino-eased. 
From these sources would necessarily ensue a greater latitude to the 
agency of that department which is always in existence, and which could 
best mould regulations of a general nature, so as to suit them to the 
diversity of particular situations. And it is in this latitude, as a sup- 
plement to the deficiency of the laws, that the degree of executive pre- 
rogative materially consists. 

The other consequence would be, that of an excessive augmentation 
of the officers, honors, and emoluments depending on the Executive will. 
Add to the present legitimate stock all those of every description which 
a consolidation of the States would take from them, and turn over to the 
Federal Goveinmcnt, and the patronage of the Executive would neces- 
sarily be as much swelled in this case as its prerogative would be i<ti the 
other. This disproportionate increase of prerogative and patronages 
must evidently either enable the Chief Magistrate of the Union, by quiet 
means, to secure his re-election from time to time, and finally, to regulate 
the succession as he might please ; or, by giving so transcendent an im- 
portance to the office, would render the elections to it so violent and cor- 
rupt, that the public voice itself might call for an hereditary, in place of 
an elective succession. Whichever of these events might follow, the 
transformation of the republican system of the United States into a 
monarcliy, anticipated by the General Assembly from a consolidation 
of the States into one sovereignty, would be equally accomplished ; and 
whether it would be into a mixed or an absolute monarchy, might dei^end 
on toe many contingencies to admit of any certain foresight. 



588 APPENDIX E. 

The resolution next in order is contained in tlie following terms : 

"That the General Assembly doth particularly protest against the 
palpable and alarming infractions of the Constitution, in the two laie 
cases of the "Alien and Sedition Acts," passed at the last session of 
Congress ; the first of which exercises a power nowhere delegated to the 
Federal Government ; and which, by uniting legislative and judicial 
powers to those of executive, subverts the general principles of free 
government, as well as the particular organization and positive provi- 
sions of the Federal Constitution ; and the other of which acts exercises, 
in like manner, a power not delegated by the Constitution, but, on the 
contrary, expressly and positively forbidden by one of the amendments 
thereto — a power which, more than any other, ought to produce univer- 
sal alarm, because it is levelled against the right of freely examining 
public characters and measures, and of free communication among the 
people thereon, which has ever been justly deemed the only effectual 
guardian of every other right." 

The subject of this resolution having, it is presumed, more particu- 
larly led the General Assembly into the proceedings which they commu- 
nicated to the other States, and being in itself of peculiar importance, it 
deserves the most critical and faithful investigation ; for the length of 
which no apology will be necessary. 

The subject divides itself into, — 

First, the "Alien Act." 

Secondly, the "Sedition Act." 

Of the "Alien Act," it is affirmed by the resolution— 1. That it exer- 
cises a power nowhere delegated to the Federal Government ; 2. That it 
unites legislative and judicial powers to those of the executive ; 3. Tliat 
tliis union of powers subverts the general principles of free government ; 
4. That it subverts the particular organization and positive provisions 
of the Federal Constitution. 

In order to clear the way for a correct view of the first position, several 
observations will be premised. 

In the first place, it is to be borne in mind, that, it being a character- 
istic feature of the Federal Constitution, as it was originally ratified, and 
an amendment thereto having precisely declared, " that the powers not 
delegated to the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or to the people," 
it is incumbent in this, as in every other exercise of power by the Federal 
Government, to prove, from the Constitution, that it grants the particular 
power exercised. 

The next observation to be made is, that much confusion and fallacy 
have teen thrown into the question, by blending the two cases of aliens, 
viemhcrs of a hostile nation ; and aliens^ members of friendly nations. 
These two cases are so obviously and so essentially distinct, that it 
occasions no little surprise that tlie distinction should have been disre- 



MR. MADISON'S REPORT. 589 

garded , and Ihe surprise is so much the greater, as it f^ppears that the 
two cases are actually distinguished by two separate acts of Congress, 
passed at the same session, and comprised in the same publication ; the 
one providing for the case of " alien enemies ;" the other "concerning 
aliens" indiscriminately, and conseqxicntly extending to aliens of every 
nation in peace and amity with the United States. "With respect to 
alien enemies, no doubt has been intimated as to the Federal authority 
over them ; the Constitution having expressly delegated to Congi-ess the 
power to declare war against any nation, and of course to treat it and 
all its members as enemies. With respect to aliens who are not enemies, 
but members of nations in peace and amity with the United States, the 
power assumed by the act of Congress is denied to be constitutional ; 
and it is accordingly against this act that the protest of the General 
Assembly is expressly and exclusively directed. 

A third obsei'vation is that, were it admitted, as is contended, that 
the "act concerning aliens" has for its object, not a penal^ but a pre^ 
ventive justice, it would still remain to be proved that it comes within 
the constitutional power of the Federal Legislature ; and, if within its 
power, that the Legislature hns exercised it in a constitutional manner. 
In the administration of preventive justice, the following principles have 
been held sacred : that some probable ground of suspicion be exhibited 
before some judicial authority ; that it be supported by oath or affirma- 
tion ; that the party may avoid being thrown into confinement, by iind- 
ing pledges or sureties for his legal conduct sufficient in the judgment 
of some judicial authority ; that he may have the benefit of a writ of 
habeas corpus, and thus obtain his release if wrongfully confined ; and 
that he may at any time be discharged from his recognizance, or his 
confinement, and restored to his former liberty and rights, on the order 
of the proper judicial authority, if it shall see sufficient cause. 

All these principles of the only preventive justice known to American 
jurisprudence are violated by the Alien Act. The ground of suspicion is 
to be judged of, not by any judicial authority, but by the Executive 
magistrate alone. iSTo oath or affirmation is required. If the suspicion 
be held reasonable by the President, he may order the suspected alien to 
depart froai the territory of the United States,, without the opportunity 
of avoiding the sentence by finding pledges for his future good conduct. 
As the President may limit the time of departure as he pleases, the 
benefit of the Avrit of habeas corpus may be suspended with respect to 
the party, although the Constitution ordains that it shall not be sus- 
pended unless when the public safety may require it, in case of Rebellion 
or invasion, — neither of which existed at the passage of the act ; and the 
pai ty being, under the sentence of the President, either removed from 
the United States, or being punished by imprisonment, or disqualifica- 
tion ever to become a citizen, on conviction of not obeying the order of 
removal, he cannot be discharged from the proceedings against him, and 



590 APPENDIX E. 

restored to the benefits of his former situation, although the highest judi' 
cial authority should see the most sufficient cause for it. 

But, in the last place, it can never be admitted that the removal of 
aliens, authorized by the act, is to be considered, not as punishment for 
an offence, but as a measure of precaution and prevention. If the banish- 
ment of an alien from a country into which he has been invited as tho 
asylum most auspicious to his happiness, — a country where he may 
have formed the most tender connections ; where he may have investetj, 
his entu-e property, and acquired property of the real and permanent, 
as well as the movable and temporary kind ; where he enjoys, under the 
laws, a greater share of the blessings of personal security, and personal 
liberty, than he can elsewhere hope for ; and where he may have nearly 
completed his probationary title to citizenship ; if, moreover, in the 
execution of the sentence against him, he is to be exposed, not only to 
the ordinary dangers of the sea, but to the peculiar casualties incident 
to a crisis of war and of unusual licentiousness on that element, and 
possibly to vindictive purposes, which his emigration itself may have 
provoked ; — if a banishment of this sort be not a punishment, and among 
the severest of punishments, it will be difficult to imagine a doom to which 
the name can be applied. And if it be punishment, it will remain to be 
inquired, whether it can be constitutionally iuUicted, on mere suspicion, 
by the single will of the Executive magistrate, on persons convicted of 
no personal offence against the laws of the land, nor involved in any 
offence against the law of nations, charged on the foreign State of which 
they are members. 

One argument offered in justification of this power exercised over 
aliens is, that, the admission of them into the country being of favor, 
not of right, the favor is at all times revocable. To this argument it 
might be answered, that, allowing the truth of the inference, it would 
be no proof of what is required. A question would still occur, whether 
the Constitution had vested the discretionary power of admitting aliens 
in the Federal government or in the State governments. 

But it cannot be a true inference, that, because the admission of an 
alien is a favor, the favor may be revoked at pleasure. A gi-ant of land 
to an individual may be of favor, not of right ; but the moment the 
grant is made, the favor becomes a right, and must be forfeited before 
it can be taken away. To pardon a malefactor may be a favor, but the 
pardon is not, on that account, the less irrevocable. To admit an alien 
to naturalization, is as much a flivor as to admit him to reside in the 
country ; yet it cannot be pretended that a person naturalized can be 
deprived of the benefits, any more than a native citizen can be disfran- 
chised. 

Again, it is said that, aliens not being parties to the Constitution, 
the rights and privileges which it secures cannot be at all claimed by 
them. 



MR. MADISON'S REPORT. 591 

To this reasoning, also, it might be answered that, although aliens 
are not parties to the Constitution, it does not follow that the Constitu- 
tion has vested in Congress an absolute power over them. The parties 
to the Constitution may have granted, or retained, or modified, the 
power over aliens, without regard to that particular consideration. 

But a more direct reply is, that it does not follow, because aliens are 
not parties to the Constitution, as citizens are parties to it, that, whilst 
they actually conform to it, they have no right to its protection. Aliena 
are not more parties to the laws than they are parties to the Constitu- 
tion ; yet it will not be disputed that, as they owe, on one hand, a tem- 
porary obedience, they are entitled, in return, to their protection and 
advantage. 

If aliens had no rights under the Constitution, they might not only be 
banished, but even capitally punished, without a jur}^ or the other inci- 
dents to a fair trial. But so far has a contrary principle been carried, 
in every part of the United States, that, except on charges of treason, 
an alien has, besides all the common privileges, the special one of being 
tried by a jury, of which one half may be also aliens. 

It is said, further, that, by the law and practice of nations, aliens 
may be removed, at discretion, for oifeuces against the law of nations ; 
that Congress are authorized to define and punish such offences ; and 
that to be dangerous to the peace of society is, in aliens, one of those 
offences. 

The distinction between alien enemies and alien friends is a clear and 
conclusive answer to this argument. Alien enemies are under the law 
of nations, and liable to be punished for offences against it. Alien 
friends, except in the single case of public ministers, are under the 
municipal law, and must be tried and punished according to that law 
only. 

This argument, also, by referring the alien act to the power of Con- 
gress to define and punish offences against the law of nations, yields the 
point that the act is of a 2)enaJ^ not merely of a preventive operation. 
It must, in truth, be so considered. And if it be a penal act, the 
punishment it inllicts must be justified by some offence that deserves it. 

Offences for which aliens, within the jurisdiction of a country, are 
punishable, are— first, offences committed by the nation of which they 
make a part, and in whose offences they are involved ; secondly, offences 
committed by themselves alone, without any charge against the nation 
to which they belong. The first is the case of alien enemies ; the second, 
the case of alien friends. In the first case, the oflbnding nation can no 
otherwise be punished than by war, one of the laws of which authorizes 
the expulsion of such of its members as may be found within the country 
against which the offence has been committed. In the second case, — 
the offence being committed by the individual, not by his nation, and 
against the municipal law, not against the law of nations,— the indi- 



592 APPENDIX E. 

vidual only, and not tlie nation, is punishable ; and the punishment 
must be conducted according to the municipal law, not according to the 
law of nations. Under this view of the subject, the Act of Congress for 
the removal of alien enemies, being conformable to the law of nations, 
is justified by the Constitution ; and the " act" for the removal of alien 
friends, being repugnant to the constitutional principles of municipal 
law, is unjustifiable. 

Nor is the act of Congress for the removal of alien friends more agree- 
able to the general practice of nations than it is within the i^urview of 
the law of nations. The general jDractice of nations distinguishes be- 
tween alien friends and alien enemies. The latter it has proceeded 
against, accordmg to the law of nations, by expelling them as enemies. 
The former it has considered as under a local and temporary allegiance, 
and entitled to a correspondent protection. If contrary instances are to 
be found in barbarous countries, under undefined prerogatives, or amid 
revolutionary dangers, they will not be deemed fit precedents for the 
Government of the United States, even if not beyond its constitutional 
authority. 

It is said that Congress may grant letters of marque and reprisal ; 
that reprisals may be made on persons as well as property ; and that 
the removal of aliens may be considered as the exercise, in an inferior 
degree, of the general power of reprisal on persons. 

Without entering minutely into a question that does not seem to re- 
quire it, it may be remarked that reprisal is a seizure of foreign persons 
or property, with a view to obtain that justice for injuries done by one 
State, or its members, to another State, or its members, for which a 
refusal of the aggressors requires such a resort to force, under the law 
of nations. It must be considered as an abuse of words, to call thti re- 
moval of persons from a country a seizure, or a reprisal on them ; nor is 
the distinction to be overlooked between reprisals on persons within the 
countr}'-, and under the faith of its laws, and on persons out of the coun- 
try. But, laying aside these considerations, it is evidently impossible 
to bring the Alien Act within the power of granting reprisals ; since it 
does not allege or imply any injury received from any particular nation, 
for which this proceeding against its members was intended as a repa- 
ration. 

The proceeding is authorized against aliens of every nation ; of nations 
charged neither with any similar proceedings against American citi- 
zens, nor with any injuries for which justice might be sought, in the 
mode prescribed by the act. Were it true, therefore, that good causes 
existed for reprisals against one or more foreign nations, and that neitht'T 
the persons nor property of its members, under the faith of oui* laws, 
could plead an exemption, the operation of the act ought to have been 
limited to the aliens among us belonging to such nations. To license 
reprisals against all nations, for aggressions charged on one only, would 



MR. MADISON'S RErORT. 5^J3 

be a measure as contrary to every principle of justice and public law, 
as to a wise policy, and tlie universal practice ot nations. 

It is said that the right of removing aliens is an incident to the power 
of war, vested in Congress by the Constitution, This is a former argu- 
ment in a new shape only, and is answered by repating, that the re 
moval of alien enemies is an incident to the power of war ; that the ro 
moval of alien friends is not an incident to the power of war. 

It is said that Congress are, by the Constitution, to protect each State 
against invasion ; and that the means o^ irrevenUiig \n\asion are included 
in the power of protection against it. 

The power of war, in general, having been before granted by the 
Constitution, this clause must either be a mere specification for greater 
caution and certainty, of which there are other examples in the instru- 
ment, or be the injunction of a duty, superadded to a grant of tlie power. 
Under either explanation, it cannot enlarge the powers of Congress on 
the subject. The power and the duty to protect each State against an 
invading enemy would be the same under the general power, if this 
regard to the greater caution had been omitted. 

Invasion is an operation of war. To protect against invasion is an 
exercise of the power of war. A power, therefore, not incident to war. 
cannot l)e incident to a particular modification of Avar ; and as the re- 
moval of alien friends has appealed to be no incident to a general state 
of war, it cannot be incident to a partial state, or a particular modifica- 
tion of war. 

JTor can it ever be granted, that a power to act on a case, when it 
actually occurs, includes a power over all the means that may tend to 
prevent the occurrence of the case. Such a latitude of construction 
would render unavailing every practical definition of particular and 
limited powers. Under the idea of preventing war in general, as well . 
as invasion in particular, not only an indiscriminate removal of all 
aliens might be enforced, but a thousand other things, still more remote 
from the operations and precautions appurtenant to war, might take 
place. A bigoted or tyrannical nation might threaten us witli war, 
unless certain religious or political regulations were adopted by us ; yet 
it never could be inferred, if the regulations which would i)revent war 
M^ere such as Congress -had otherwise no power to make, thai the power 
to make them would grow out of the purpose they were to answer. 
Congress have power to suppress insurrections ; yet it would not be 
allowed to follow, that the}^ might employ all the means tending to 
prevent them ; of which a system of moral instruction for the ignorant, 
and of provident support for the poor, miglit be regarded as among the 
most efficacious. 

One argument for the power of the General Government to remove 
aliens would have been passed in silence, if it had appeared under any 
authority inferior to that of a report made, during the last session of 
38 



594 APPENDIX E. 

Congre,.s, to the House of Eepresentatives, by a committee, and a^jproved 
by the House. The doctrhie on which this argument is founded is of 
so new and so extraordinaiy a character, and strilies so radically at the 
political system of America, that it is i)roper to state it m the very 
words of the report. 

" The act (concerning aliens) is said to be unconstitutional, because 
to remove aliens is a direct breach of the Constitution, which provides, 
by the 0th section of the 1st article, that the migration or importation 
of such persons as any of the States shall think proper to admit, shall 
not be prohibited by the Congress prior to the year 1808." 

Among the answers given to this objection to the constitutionality of 
the act, tlie following very remarkable one is extracted : — 

"Thirdly, That, as the Constitution has given to the States no power 
to remove aliens, during the period of the limitation under consideration, 
in the meantime, on the construction assumed, there would be no 
authority in the county empowered to send away dangerous aliens ; 
wliich cannot be admitted." 

The reasoning here used would not, in any view, be conclusive ; be- 
cause there are powers exercised by most other governments, which, in 
the United States are withheld by the people both from the General 
Government and the State Governments. Of this sort are many of the 
powers prohibited by the declarations of rights prefixed to the Constitu- 
tions, or by the clauses, in the Constitutions, in the nature of such ■ 
declarations. iSTay, so far is the political system of the United States 
distinguishable from that of other countries, by the caution with which 
powers are delegated and defined, that, in one very important case, ever 
of commercial regulation and revenue, the power is absolutely locked up 
against the hands of both Governments. A tax on exports can be laid 
by no constitutional authority whatever. Under a system thus pecu- 
liarly guarded, there could surely be no absurdity in supposing that 
alien friends— who, if guilty of treasonable machinations, may be pun- 
ished, or, if suspected on probable grounds, may be secured by pledges 
or imprisonment, in like manner with permanent citizens— were never 
meant to be subjected to banishment by an arbitrary and unusual pro- 
cess, either under the one Government or the other. 

But it is not the inconclusiveness of the general reasoning, in this pas- 
sage, which chiefiy calls the attention to it. It is the principle assumed 
by it, that the powers held by the States are given to them by the Con- 
stitution of the United States ; and the inference from this principle, 
that the powers supposed to be necessary, which are not so given to the 
State GovcruuKuts, must reside in the Govennuent of the United States. 

The respect which is felt for every portion of the constituted authori- 
ties forbids some of the reflections which this singular paragraph might 
excite ; and they are the more readily suppressed, as it may be presumed, 
with justice ]ierhaps as well as candor, that inadvertence may have had 



MR. MADISON'S RErORT. 595 

its share in txic error. It would be unjustifiable delicacy, ncvcrllicless, 
to pass 1.">y so portentous a claim, proceeding from so high an authority, 
without a monitory notice of the fatal tendencies with which it would 
be pregnant. 

Lastly, it is said that a law on the same subject with the Alien Act, 
passed by this State originally in 1785, and re-enacted in 1792, is i 
proof that a summary removal of suspected aliens was not hcx-etofoie 
regarded, by the Virginia Legislature, as liable to the objections now 
urged against such a measure. 

This charge against Virginia vanishes before the simple remark, that 
the law of Virginia relates to "suspicious persons, being tlie subjects of 
any foreign power or State Avho shall have made a declaration of war, or 
actually commenced hostilities, or from whom the President shall appre- 
hend hostile designs;'''' whereas the act of Congress relates to aliens, 
being the subjects of foreign powers and States, who have neither de- 
clared war, nor commenced liostilitics, nor from whom hostile dangers are 
apprehended. 

2. It is next affirmed of the Alien Act, thai it unites legislative, judi- 
cial, and executive powers, in the hands of the President. However 
difficult it may be to mark, in every case, with clearness and certainty, 
the line which divides legislative power from the other departments of 
power, all will agree that the powers refeired to these departments may 
be so general and undefined, as to be of a legislative, not of an executive 
or judicial nature, and may for that reason be unccmstitutional. Details, 
to a certain degree, are essential to the nature and character of a law ; 
and on criminal subjects, it is proper that details should leave as little 
as possible to the discretion of those who ai'e to apply and execute the 
law. If nothing more were required, in exercising a legislative tiust, 
than a general conveyance of authority — without laying down any pre- 
cise rules by which the authority conveyed should be carried into effect 
— it would follow that the whole power of legislation might be transferred 
by the Legislature from itself, and proclamations might become substi- 
tutes for law. A delegation of power in this latitude would not be de- 
nied to be a union of the different powers. 

To determine, then, whether the appropriate powers of the distinct 
departments are united by the act authorizing the Executive to remove 
aliens^ it must be inquired whether it contains such details, definitions^ 
and rules, as appertain to the true character of a law ; especially a law 
by which personal liberty is invaded, property deprived of its value to 
Mie owner, and life itself indirectly exptised to danger. 

The Alien Act declares "that it shall be lawful for the President to 
order all such aliens as he shall judge dangerous to the i^eace and safety 
of the United States, or shall have reasonable ground to suspect are con- 
cerned in any treasonable or secret machinations against the Goverumeut 
thereof, to depart," etc. 



596 ArPExnx e. 

Could a power be well given in terms less definite, less particu.ar, and 
icss precise ? To be dangerous to the pvhlic safety — to be suspected of 
secret machinations against the Government — these can never be mis- 
taken f(jr legal rules or certain definitions. They leave every thing to 
the President. His will is the law. 

But it is not a legislative power only that is given to the President, 
He is to stand in the place of the judiciary also. His suspicion is the 
only evidence which is to convict ; his order, the only judgment which 
is to be executed. 

Thus it is the President whose will is to designate the offensive con- 
duct ; it is his will that is to ascertain the individuals on whom it is 
charged ; and it is his will that is to cause the sentence to be executed. 
It is rightly affirmed, therefore, that the act unites legislative and judi- 
cial powers to those of the Executive. 

3. It is affirmed that this union of power subverts the general princi- 
ple of free government. 

It has become an axiom in the science of government, that a separa- 
tion of the legislative, executive, and judicial departments is necessary 
to the preservation of public liberty. IN'oWhere has this axiom been 
better understood in theoi-y, or more carefully pursued in practice, than 
in the United States. 

4. It is affirmed that such a union of power subverts the particular 
organization and positive provision of the Federal Constitution. 

According to the particular organization of the Constitution its legis- 
lative powers are vested in the Congress, its executive poAvers in the 
J'resident, and its judicial powers in a supreme and inferior tribunals. 
The union of any of these powers, and still more of all three, in any one 
of these departments, as has been shown to be done by the Alien Act, 
must, consequently, subvert the constitutional organization of them. 

That positive provisions, in the Constitution, securing to individuals 
the benefits of iiiir trial, are also violated by the union of powers in the 
Alien Act, necessarily results from the two facts, that the act relates to 
alien friends, and that alien friends, being under the municipal law 
only, are entitled to its protection. 

The second object, against which the resolution protests, is the Sedition 
Act. 

Of this act it is affirmed — 1. That it exercises, in like manner, a power 
tot delegated by the Constitution ; 2. That the power, on the contrary, 
is expressly and positively forbidden by one of the amendments to the 
Constitution ; 3. That this is a power which, more than any other, 
ought to produce universal alarm, because it is levelled against that 
right of freeiy examining public characters and measures, and of free 
tiommunication thereon, which has ever been justly deemed the only 
eflectual guardian of every other right. 

1. That 't exercises a power not delegated by the Constitutioiu 



MR. MADISON'S REPORT. 597 

Hero, again, it will be proper to recollect that the Federal Govern- 
ment being composed of powers specifically granted, with reservation of 
all others to the States or to the people, the po!3itive authority uudc: 
which the Sedition Act could be passed must be produced by ihose who 
assert its constitutionality. In what part of the ConstiLution, then, is 
this authority to be found ? 

Several attempts have been made to answer this question, which will 
be examined in their order. The committee will begin with one which 
has tilled them with equal astonishment and apprehension ; and which, 
they cannot but persuade themselves, must have the same effect on all 
who will cour.ider it with coolness and impartiality, and with a revercncu 
for our Constitution, in the true character in which it issued from tlie 
sovereign authority of the people. The committee refer to the docitrino 
lately advanced, as a sanction to the Sedition Act, " that the common 
or unwritten law"— a law of vast extent and complexity, and embracing 
almost every possible subject of legislation, both civil and criminal- 
makes a part of the law of these States, in their united and national 
capacity. 

The novelty, and, in the judgment of the committee, the extravagance 
of this pretension, would have consigned it to the silence in which they 
have passed by other argmnents which an extraordinary zeal for the act 
has drawn into the discussion ; but the auspices under which this inno- 
vation presents itself have constrained the conmiittee to bestow on it an 
attention which other considerations might have forbidden. 

In executing the task, it may be of use to look back to the colonial 
state of this country prior to the Revolution ; to trace the ellcct of the 
Revolution which converted the colonies into independent States ; to in- 
quire into the import of the Articles of Confederation, the first instru- 
ment by which the union of the States was regularly established ; and, 
finally, to consult the Constitution of 1787, which is the oracle that must 
decide the important question. 

In the state prior to the Revolution, it is certain that the common law, 
under difi'erent limitations, made a part of the colonial codes. But, 
whether it be understood that the original colonists brought the law 
with them, or made it their law by adoption, it is equally certain that 
it was the separate law of each colony within its respective limits, aud 
was unknown to them as a law pervading and operating through tl. e 
whole, as one society. 

It could not possibly be otherwise. The common law was not the 
same in any two of the colonies ; in some, the modifications were mate- 
rially and extensively different. There was no common legislature, by 
which a common will could be expressed in the form of a law ; nor any 
common magistracy, by which such a law could be carried into prac- 
tice. The will of each colony, alone and separately, had its organs foi 



598 APPJ'NDIX E. 

these purposes. This stage of our pohtical history furnishes no foathold 
for the patrons of this new doctrine. 

Did, then, the principle or operation of the great event, which made 
the colonies independent States, imply or introduce the common law, as 
a law of the Union ? 

The ■ fundamental principle of the Revolution was, that the coljnica 
were co-ordinate members with each other, and with Great Britain, of 
an empire united by a common executive sovereign, but not united by 
any common legislative sovereign. The legislative power was main- 
tained to be as complete in each American Parliament, as in the British 
Parliament. And the royal prerogative was in force, in each colony, 
by virtue of its acknowledging the King for its executive magistrate, as 
it was in Great Britain, by virtue of a like acknowledgment there. A 
denial of these principles b}^ Great Britain, and the assertion of them 
by America, produced the Eevolution. 

There was a time, indeed, when an exception to the legislative sepa- 
ration of the several component and coequal parts of the empire ob- 
tained a degree of acquiescence. The British Parliament was allowed 
to regulate the trade with foreign nations, and between the different 
parts of the empire. This was, however, mere practice without right, 
and contrary to the true theory of the Constitution. The convenience 
of some regulations, in both cases, was apparent ; and as there was no 
legislature with power over the whole, nor any constitutional pre-emi- 
nence among the legislatures of the several parts, it was natural for the 
legislature of that particular part which was the eldest and the largest, 
to assume this function, and for the others to acquiesce in it. This 
tacit arrangement was the less criticized, as the regulations established 
by the British Parliament operated in favor of that part of the empire 
which seemed to bear the principal share of the public burdens, and 
were regarded as an indemnilication of its advances for the other parts. 
As long as this regulating power was confined to the two objects of 
conveniency and equity, it was not complained of, nor much inquired 
into. But no sooner was it perverted to the selfish views of the party 
assuming it, than the injured parties began to feel and to reflect ; and 
the moment tlie claim to a direct and indefinite power was engrafted on 
the precedent of the regulating power-, the whole charm was dissolved, 
and every eye opened to the usurpation. The assertion by Great Britain 
of a power to make laws for the other members of the empire, in all 
cases whatsoever, ended in the discovery that she had a right to make 
laws for them in no cases whatever. 

Such being the ground of our Revolution, no support or color can be 
drawn from it for the doctrine that the common law is binding on these 
States as one society. The doctrine, on the contrary, is evidently re- 
pugnant to the fundamental principle of the Revolution. 



MR. MADISON'S KEPOIIT. 599 

The Articles of Ccnifcdcnvliou are the next source of hifwrinatioii on 
this subject. 

In the interval between the coniuiencement of tlie llevolutioii and the 
final ratilicatiou of these Articles, the nature and extent of the Union 
was determined by the circui'nstances of the crisis, rather than by any 
accurate delineation of the general authority. It will not Ije alleyx.'d 
that the " coiumou law^" could have any legitimate birth, as a hiw of 
the United States, during that state of things. If it came, as sucli, into 
existence at all, the charter of confederation must have been its parent. 

Here, again, however, its pretensions are absolutely destitute of foun- 
dation. This instrument does not contain a sentence or a syllable that 
can be tortured into a countenance of the idea that the parties to it 
were, with respect to the objects of the common law, to form one com- 
munity. No such law is named, or implied, or alluded to, as being in 
force, or as brought into force by that compact. No provision is made by 
which such a law could be carried into operation ; whilst, on the other 
hand, every such inference or pretext is absolutely precluded by art. 2, 
wliich declares " that each State retains iis sovereignty, freedom, and 
independence, and every power, jurisdiction, and right, which is not by 
this Coniederation expressly delegated to the United States in Congress 
assembled." 

Thus far it appears that not a vestige of this extraordinary doctrine 
can be found in the origin or progress of American institutions. The 
evidence against it has, on the contrary, grown stronger at every step, 
till it has amounted to a formal and positive exclusion, by written arti- 
cles of compact, among the parties concerned. 

Is this exclusion revoked, and the commea law ilitroduced as national 
law, by the present Constitution of the United States V This is the 
final question to be examined. 

It is readily admitted that particular parts of the common law may 
have a sanction from the Constitution, so far as they are necessarily 
comprehended in the technical phrases which express the powers dele- 
gated to the Government ; and so far, also, as such other parts may be 
adopted by Congress, as necessary and proi)er for carrying into execu- 
tion the powers "expressly delegated. But the question does not relate 
to either of these portions of the common law. It relates to the com- 
mon law beyond these limitations. 

The only part of the Constitution which seems to have been relied on 
m this case, is the 2d section of art. 3 :— " The judicial power shall 
extend lo all cases, in law and equity, arising under this Constitution, 
the laws of the United States, and treaties made, or which shall be 
made, under their authority. It has been asked what cases, distinct 
from those arising under the laws and treaties of the United States, 
can arise under the Constitution, other than those arising under the 



600 APrEXDIX E. 

comni^'Ti law ; and it. is inferred that the common law is, accordingly, 
adopted or recognized by the Constitution. 

^ever, perhaps, was so broad a construction applied to a text so 
clearly unsusceptible of it. If any color for the inference could be found, 
it must be in the impossibility of finding any other cases, in law and 
equity, within the provisions of the Constitution, to satisfy the expres- 
sion ; and rather than I'esort to a construction aflTectiug so essentially 
the whole character of the Government, it would perhaps be more 
rational to consider the expression as a mere pleonasm or inadvertence. 
But it is not necessary to decide on such a dilemma. The expression is 
fully satisfied, and its accuracy justified, by two descriptions of cases, 
to which the judicial authority is extended, and neither of which im- 
plies that the common law is the law of the United States. One of 
these descriptions comprehends the cases growing out of the restrictions 
on the legislative power of the States. For example, it is provided that 
" no State shall emit bills of credit,'' or " make any thing but gold and 
silver coin a tender for the payment of debts." Should this prohibition 
be violated, and a suit between citizens of the same State be the conse- 
quence, this would be a case arising under the Constitution before Uie 
judicial power of the United States. A second description comprehends 
suits between citizens and foreigners, of citizens of diflerent States, to 
be decided according to the State or foreign laws, but submitted by the. 
Constitution to the judicial power of the United States ; the judicial 
power being, in several instances, extended beyond the legislative power 
of the United States. 

To this explanatian of the text, the following observations may be 
added : — 

The expression "cases in law and equity" is manifestly confined to 
cases of a civil nature, and would exclude cases of criminal jurisdiction. 
Criminal cases in law and equity would be a language unknown to the 
law. 

The succeeding parngraph in the same section is in harmony with 
this construction. It is in these words : "In all cases affecting am- 
bassadors, or other public ministers, and consuls ; and those in which 
a State shall be a party, the Supreme Court shall have original jurisdic- 
tion. In nil the other cases, (including cases of law and equity arising 
under the Constitution,) the Supreme Court shall have a»jje??ttie jurisdic- 
tion, both as to law and fact, with such exceptions, and under such 
regulations, as Congress shall make." 

This paragraph, by expressly giving an appellate jurisdiction, in cases 
of law and equity arising under the Constitution, to fad, as well as to 
law, clearly excludes criminal cases, where the trial by jury is secured— 
l)ecause the fact, in such cases, is not a suljjoct of appeal ; and, although 
H\e appeal is liable to such excepUonn and regulations as Congress may 
^dopt, yet it is not to be supposed that an excej-ito/i of all criminal cases 



MR. MADISON'S REPORT. 601 

could be conteiuplatcd, asj well because a discretiou in Cougress to raako 
or omit the exception would be improper, as because it would have been 
unnecessary. The exception could as easily have been made by the 
Constitution itself, as referred to the Congress. 

Once more : The amendment last added to the Constitution deserves 
attention as throwing light on this subject. " The judicial power of the 
United States shall not be construed to extend to any suit in law or 
equity, commenced or prosecuted against one of the United States, by 
citizens of another state, or by citizens or subjects of any foreign power." 
As it will not be pretended that any criminal proceeding cotild take place 
agamst a State, the terms law or equity must be understood as appropriate 
to civil in exclusion o^ cnndnal cases. 

From these considerations, it is evident that this part of the Constitu- 
tion, even if it could be applied at all to the purpose for which it has 
been cited, would not include any cases whatever of a criminal nature, 
and consequently would not authorize the inference from it, that the 
judicial authority extends to offences against the common law, as 
offences arising under the Constitution. 

It is further to be considered that, even if this part of the Constitution 
could be strained into an application to every common law case, crimi- 
nal as well as civil, it could have no effect in justifying the Sedition Act, 
which is an act of legislative, and not of judicial powei- : and it is the 
judicial power only of which the extent is defined in this part of the 
Constitution. 

There are two passages in the Constitution, in which a description of 
the law of the United States is found. The first is contained in art. 
3, sec. 3, in the words following : " This Constitution, the laws of 
the United States, and treaties made, or which shall be made, under 
this authority." The second is contained in the second paragraph of 
art 6, as follows: "This Constitution, and the laws of the United 
States wliich shall be made in pursuance thereof, and all treaties made 
cr which shall be made, under the authority of the United States, shall 
be the supreme law of the land." The first of these descriptions was 
meant as a guide to the judges of the United States ; the second, as a 
guide to the judges of the several States. Both of them consist of an 
enumeration, which was evidently meant to be precise and complete. 
If the common law had been understood to be a law of the United 
States, it is not possible to assign a satisfactory reason why it was not 
expressed in the enu«ieration. 

In aid of these objections, the difficulties and confusion inseparable 
from a constructive introduction of the common law would afford power- 
ful reasons against it. 

Is it to be the common law with or without the British statutes ? If 
without the statutory amendments, the vices of the code would bo 
vasupportab'e. 



602 APPENDIX E. 

If wiUi tlicsc ameudiiieuls, what period is ty be fixal for limiting the 
British authority over our laws ? 

Is it to be the date of the eldest, or the youngest, of the colonies ? 
Or arc the dates to be thrown together, and a medium deduced ? Or la 
our indei)cndence to be taken for the date ? 

Is, again, regard to be had to the various changes in the common law 
made by the local codes of America ? 

1 3 regard to be had to such (changes subsequent as well as prior to the 
establishment of the Constitution ? 

Is regard to be had to future as well as past changes ? 

Is the law to be different in every State, as differently modified by its 
code ; or are the modifications of any particular State to be applied to 
all? 

And on the latter supposition, which among the State codes forms the 
standard ? 

Questions of this sort might be multiplied with as much ease as there 
would be difliculty in answering them. 

These consequences, flowing from the proposed construction, furnish 
other objections equally conclusive ; unless the text were peremptory in 
its meaning, and consistent with other parts of the instrument. 

These consequences may be in relation to the legislative authority of 
the United States ; to the executive authority ; to the judicial authority ; 
and to the Governments of the several States. 

If it be understood that the common law is established by the Consti- 
tution, it follows that no part of the law can be altered by the Legisla- 
ture. Such of the statutes already passed as may be repugnant thereto, 
would be nullified ; particularly the Sedition Act itself, which boasts of 
being a melioration of the common law ; and the whole code, with all 
its incongruities, barbarisms, and bloody maxims, would be inviolably 
saddled on the good people of the United States. 

Should this consequence be rejected, and the common law be held, 
like other laws, liable to revision and alteration by the authority of 
Congress, it then follows that the authority of Congress is co-extensive 
with the objects of common law ; that is to say, with every object of 
legislation ; fur to every such object does some branch or other of the 
common law extend. The authority of Congress would, therefore, be 
no longer under the limitations marked out in the Constitution. They 
would be authorized to legislate in all cases whatsoever. 

In the next place, as the President possesses the executive powers of 
the Constitution, and is to see that the laws be faithfully executed, his 
authority also must be co-extensive with every branch of the common 
law. The additions which this would make to his power, though not 
readily to be estimated, claim the most serious attention. 

This is not all : it will merit the most profound consideration, how 
far an indefinite admission of the common law, with a latitude in con 



MR. MADISON'S REPORT 603 

etruing it eqvial to the construction by which it is deduced iVoni the 
Constitution, might draw after it the various prerogatives, malcing part 
of the unwritten hxw of England. Tlie English Constitution itself is 
nothing more than a composition of unwritten laws and maxims. 

In the third place, whether the common law be admitted as of legal 
or of constitutional obligation, it would confer on the judicial depart- 
ment a discretion little short of a legislative power. 

On the supposition of its having a constitutional obligation, this 
power in the judges would be permanent and irremediable by the Legis- 
lature. On the other supposition, the power would not expire until the 
Legislature should have introduced a full system of statutory provisions. 
Let it be observed, too, that, besides all the uncertainties above enume- 
rated, and which present an immense field for judicial discretion, it 
would remain with the same department to decide what parts of the 
common law would, and what would not, be properly applicable to the 
circumstances of the United States. 

A discretion of this sort has always been lamented as incongruous aad 
dangerous, even in the colonial and State courts, although so much nar- 
rowed by positive provisions in the local codes on all the principal sub- 
jects embraced by the common law. Lender the United States, where 
so few laws exist on those subjects, and where so great a lapse of time 
must happen before the vast chasm could be supplied, it lo manifest that 
the power of the judges over the law would, in fact, erect them into 
legislators, and that, for a long time, it would be impossible for the citi- 
zens to conjecture either what wa^, or would be, law. 

In the last place, the consequence of admitting the common law as 
the law of the United States, on the authority of the individual States. 
is as obvious as it would be fatal. As this law relates to evt,ry subject 
of legislation, and would be paramount to the Constitutions and laws 
of the States, the admission of it would overwhelm the residuary sove- 
reignty of the States, and, by one constructive operation, new-model the 
Avhole political fabric of the country. 

From the review thus taken of the situation of the American colonies 
prior to their independence ; of the effect of this event on their situation •, 
of the nature and import of the Articles of Confederation ; of the true 
meaning of the passage in the existing Constitution from which the 
common law has been deduced ; of the diniculties and uncertainties 
incident to the doctrine ; and of its vast consequences in extending the 
powers of the Federal Government, and in superseding the authoritiea 
of the State Governments, — the committee feel the utmost confidence in 
concluding that the common law never was, nor by any fair construc- 
tion ever can be, deemed a law for the American people as one commu- 
nity ; and they indulge the strongest expectation that the same conclu- 
sion will be finally drawn by all candid and accurate inquirers into thf 
subject. It is, indeed, distressing to reflect that it ever should ImA'f 



604 APPENDIX K 

been made a question, whether the Constitution, on the whole face of 
which is seen so much labor to enumerate and define the several objects 
of Federal power, could intend to introduce in the lump, in an indirect 
manner, and by a forced construction of a few phrases, the vast and 
multifarious jurisdiction involved in the common law — a law filling so 
many ample volumes , a law overspreading the entire field of legisla- 
tion ; and a law that would sap the foundation of the Constitution as a 
system of limited and specified powers. A severer reproach could not, 
in the opinion of the committee, be thrown on the Constitution, on 
those who framed, or on those who established it, than such a suppt)si- 
tion would throw on them. 

The argument, then, drawn from the common law, on the ground of 
its being adopted or recognized by the Constitution, being inapplicable 
to the Sedition Act, the committee will proceed to examine the other 
arguments which have been founded on the Constitution. 

They will waste but little time in the attempt to cover the act by the 
preamble to' the Constitution, it being contrary to every acknowledged 
rule of construction to set up this part of an instrument in opposition to 
the plain meaning expressed in the body of the instrument. A preamble 
usually contains the general motives or reason for the particular regula- 
tions or measures which follow it, and is always understood to be ex- 
plained and limited by them. In the present instance, a contrary in- 
terpretation would have the inadmissible effect of rendering nugatory or 
improper everj'^ part of the Constitution which succeeds the preamble. 

The paragraph in art. 1, sect. 8, which contains the power to levy 
and collect taxes, duties, imposts, and excises, to pay the debts, and 
provide for the common defence and general welfare, having been 
already examined, will also require no particular attention in this place. 
It will have been seen that, in its fair and consistent meaning, it cannot 
enlarge the enumerated powers vested in Congress. 

The part of the Constitution which seems most to be recurred to, in 
defence of the Sedition Act, is the last clause of the above section, em- 
powering Congress " to make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the Government of the United 
States, or in any department or officer thereof." 

The plain import of this clause is, that Congress shall have all the 
incidental or instrumental powers necessary and proper for carrying 
into execution all the express powers, whether they be vested in tbe 
Government of the United States, more collectively, or in the several 
departments or officers thereof. 

It is not a grant of new powers to Congress, but merely a declaration, 
for the. removal of all uncertainty, that the means of carrying into exe- 
cution those othciwise granted are included in the grant. 

Whenever, thorvifore, a question arises concerning the constitutiou- 



MR. MADISON'S KEPORT. 605 

alitj <of a particular power, the first question is, wlictlicr the power be 
expressed in the Constitution. If it be, the question is decided. If it 
be not expressed, the next inquiry must be, whether it is properly an 
incident to an express power, and necessary to its execution. If it be, 
it may be exercised by Congress. If it be not, Congress cannot exer 
cise it. 

Let the question be asksd, then, whether the power over the press, 
exercised in tlie Sedition Act, be found among the powers expressly 
vested in Congress. This is no*, pretended. 

Is there any express power, for executing which it is a necessary and 
prosier power ? 

The power which has been selected, as least remote, in answer to thia 
question, is that " of suppressing insurrections ;" which is said to imply 
a power to prevent insurrections, by punishing whatever may lead or 
tend to them. But it surely cannot, with the least plausibility, be said, 
that the regulation of the press, and punishment of libels, are exercises 
of a power to suppress insurrections. The most that could be said would 
be, that the punishment of libels, if it had the tendency ascribed to it, 
might prevent the occasion of passing or executing laws necessary and 
proper for the suppression of insurrections. 

lias the Federal Government no power, then, to prevent as well as 
to xiunish resistance to the laws ? 

They have the power, v.iiich the Constitution deemed most proper, in 
their hands for the purpose. The Congress has power, before it happens, 
to iiass laws for punishing it ; and the executive and judiciary have 
power to enforce those laws when it does happen. 

It must be i-ecollected by many, and could be shown to the satisfac- 
tion of all, that the constructioi\hcre put on the terms "necessary and 
proper" is precisely the construction which prevailed during the discus- 
sions and ratifications of the Constitution. It may be added, and cannot 
too often be repeated, that it is a construction absolutely necessary to 
maintain their consistency with tlic peculiar character of the Govern- 
ment, as possessed of particular and definite powers only, not of the 
general and indefinite powers vested in ordinary governments ; for, if 
the power to suppress insurrections includes the power to punish libels, 
or if the power to punish includes a power to prevent, by all the means 
that may have that tendency, such is the relation and influence among 
the most remote subjects of legislation, that a power over a very few 
would carry with it a power over all. And it must be wholly imma- 
terial whether unlimited powers be exercised under the name of un- 
limited powers, or be exercised under the name of unlimited means of 
carrying into execution limited ^lowers. 

Tliis branch of the subject will be closed with a reflection which must 
have weight with all, but more especially with those who place peculiar 
reliance on the judicial exposition of the Constitution, as the bulwark 



606 APPENDIX E 

provided against an undue extension of the legislative power. If it be 
understood that the powers implied in the specified powers have an im- 
mediate and appropriate relation to them, as means necessary and proper 
for carrying them into execution, questions on constitutionality of laws 
passed for this purpose will ])e of a nature sufficiently precise and deter- 
minate for judicial cognizance and control. If, on the other hand, Con- 
gress are not limited, in the choice of means, by any such appropriate 
relation of them to the specified powers, but may employ all such means 
as they may deem fitted to prevent, as well as to punish, crimes sub- 
jected to their authority, (such as may have a tendency only to promote 
an object for which they are authorized to provide,) every one must per- 
ceive that questions relating to means of this sort must be questions for 
mere policy and expediency ; on which legislative discretion alone can 
decide, and from which the judicial interposition and control are com- 
pletely excluded. 

2. The next point which the resolution requires to be proved is, that 
the power over the press, exercised by the Sedition Act, is positively 
forbidden by one of the amendments to the Constitution. 

The amendment stainls in these words : " Congress shall make no law 
respecting an establishment of religion, or prohibiting the free exercise 
thereof, or abridging the freedom of speech, or of the press, or of the 
right of the people peaceably to assemble, and to petition the Government 
for a redress of grievances." 

In the attempts to vindicate the Sedition Act, it has been contended, 
1. That the " freedom of the press" is to be determined by the meaning 
of these terms in the common law ; 2. That the article supposes power 
over the press to be in Congress, and prohibits them only from abridging 
the freedom allowed to it by the common law. 

Although it will be shown, on examining the second of these positions, 
that the amendment is a denial to Congress of all power over the press, 
•t may not be useless to make the following observations on the first of 
tliem : — 

It is deemed to be a sound opinion that the Sedition Act, in its defi- 
nition of some of the crimes created, is an abridgment of the freedom of 
publication, recognized by principles of the common law in England. 

Tlie freedom of the press, under the common law, is, in the defences 
of the Sedition Act, made to consist in an exemption from all previous 
restraint ou printed publications, by persons authorized to inspect or 
prohibit them. It appears to the committee that this idea of the free- 
dom of the press can never be admitted to be the American idea of it ; 
since a law inflicting penalties on printed publications would have a 
similar effect with a law authorizing a previous restraint on them. It 
would seem a mockery to sa}' that no laws should be passed preventing 
publications from being made, but that laws might be passed for punish- 
ng then\ in case they should be made. 



xMR. MADISON'S RErORT. 607 

The essential dilTcrence between the British Government and the 
Anipi-ican Constitutions Avill place this subject in the clearest light. 

In the British Government, the clanger of encroachments on the rights 
of tJie people is understood to be confined to the executive magistrate. 
The Representatives of the people in the Legislature are not only exempt 
themselves from distrust, but are considered as sufficient guardians of 
the rights of their constituents against the danger from the Executive. 
Hence it is a principle, that the Parliament is unlimited in its power ; 
or, in their own language, is onmipotent. Hence, too, all the ramparts 
for urotecting the rights of the people,— such as their Magna Charta, 
tlieir bill of rights, etc.,— are not reared against the Parliament, but 
against the royal prerogative. They are merely legislative precautions 
against executive usurpation. Under such a Government as this, an 
exemption of the press from previous restraint by licensers appointed by 
the King, is all the freedom that can be secured to it. 

In the United States, the case is altogether different. The people, 
not the Government, possess the absolute sovereignty. The Legislature, 
no less than the Executive, is under limitations of power. Encroach- 
ments are regarded as possible from the one as well as from the other. 
Hence, in the United States, the great and essential rights of the people 
are secured against legislative as well as executive ambition. They are 
secured, not by laws paramount to prerogative, but by Constitutions 
paramount to laws. This security of the freedom of the press requires 
that it should be exempt, not only from previous restraint of the Execu- 
tive, as in Great Britain, but from legislative restraint also ; and this 
exemption, to be effectual, must be an exemption, not only from the 
previous inspection of licensers, but from the subsequent penalty of laws. 

The State of the press, therefore, under the common law, cannot, in 
this point of view, be the standard of its freedom in the United States. 

But there is another view under which it may be necessary to con- 
sider this subject. It may be alleged that, although the security for 
the freedom of the press be different in Great Britain and in this coun- 
try, — being a legal security only in the former, and constitutional 
S""urity in the lattcr,^and although there may be a further difference, 
in an extension of the freedom of the press, here, beyond an exemption 
from previous restraint, to an exemption from subsequent penalties also, 
—yet the actual legal freedom of the press, under the common law, 
must determine the degree of freedom which is meant by the terms, and 
which is constitutionally secured against both previous and subsequent 
restraints. 

The committee are not unaware of the difficulty of all general ques- 
tions, which may turn on the proper boundary between the liberty and 
licentiousness of the press. They will leave it, therefore, for considera- 
tion only, how far the difference between the nature of the British 
Government, and the nature of the American Government, and the 



608 APPENDIX E. 

practice under 'the latter, may show the degree of rigor in the former to 
be inapplicable to, and not obligatory in, the latter. 

The nature of Governments elective, limited, and responsible, in all 
their branches, may well be supposed to require a greater freedom of 
animadversion, than might be tolerated by the genius of such a 
'roverument as that of Great Britain. In the latter, it is a maxim, that 
tiie King — an hereditary, not a responsible magistrate — can do no 
wrong ; and that the Legislature, which, in two thirds of its composi- 
tion, is also hereditary, not responsible, cai^ do what it pleases. In the 
United States, the executive magistrates are not held to be infallible, 
nor the Legislatures to be omnipotent ; and both, being elective, are 
both responsible. Is it not natural and necessary, under such different 
circumstances, that a different degree of freedom in the use of the pie&s 
should be contemplated ? 

is not such an inference favored by what is observable in Great 
Britain itself? N'otwithstanding the general doctrine of the common 
law, on the subject of the press, and the occasional punishment of those 
whu use it with a freedom offensive to the Government, it is well known 
that, with respect to the responsible measures of the Government, where 
the reasons operating here become applicable there, the freedom exer- 
cised by the press, and protected by i)ublic opinion, far exceeds the 
limits prescribed by the ordinarjf rules of law. The ministry, who are 
responsible to impeachment, are at all times animadverted on, by the 
l)ress, with peculiar freedom ; and during the elections for the House of 
Commons, the other responsible part of the Government, the press ia 
emploj^ed with as little reserve towards the candidates. 

The practice in America must be entitled to much more respect. In 
every State, probably, in the Union, the press has exerted a freedom in 
canvassing the merits and measures of public men, of every description, 
which has not been confined to the strict limits of the common law. 
On this footing the freedom of the press has stood ; on this foundation il 
yet stands ; and it will not be a breach, either of truth or of candor, to 
say that no persons or presses are in the habit of more unrestrained ani- 
madversions on the proceedings and functionaries of the State Govern- 
ments, than the persons and presses most zealous in vindicating the 
act of Congress for punishing similar animadversions on the Govern- 
ment of the United States. 

The last remark will not be understood as claiming for the State Gov- 
ernments an immunity greater than they have heretofore enjoyed. Some 
degree of abuse is insepaijable from the proper use of every thing ; au4 
in no instance is this more true than in that of the press. It has accora- 
ingly been decided, by the practice of the States, that it is better to 
leave a few of its noxious branches to their luxuriant growth, than, by 
pruning them away, to injure the vigor of those yielding the proper 
fruits. And can the wisdom of this policy be doubtful by any one who 



MR. MADISON'S RLPORT. (J09 

reflects that to the press alone, checkered as it is with abuses, the world 
is indebted for all the triumphs which have been gained by reason and 
humanity over error and oppression ; who reflects that to the same be- 
neficent source the United States owe much of the lights which con- 
ducted them to the rank of a free and independent nation and which 
have improved their political system into a shape so auspicious to their 
hapj)iness V Had Sedition Acts, forbidding every publication that 
might bring the constituted agents into contempt or disrepute, cr that 
might excite the hatred of the people against the authors of unjust or 
pernicious niea'"ures, been uniformly enforced against the press, might 
not the United States have been languishing, at this day, under the in- 
firmities of a sickly Confederation ? Might they not, possibly, be miser- 
able colonies, groaning under a foreign yoke ? 

To these observations one fact will be added, which demonstrates 
that the common law cannot be admitted as the universal expositor of 
American terms, which may be the same with those contained in that 
law. The freedom of conscience, and of religion, is found in the same 
instrument which asserts the freedom of the press. It will never be 
admitted that the meaning of the former, in the common law of Eng- 
land, is to limit their meaning in the United States. 

Whatever weight may be allowed to these considerations, the com- 
mittee do not, however, by any means intend to rest the question on 
them. They contend that the article of the amendment, instead of 
supposing in Congress a power that might be exercised over the press, 
provided its freedom was not abridged, meant a positive denial to Con- 
gress of any power whatever on the subject. 

To demonstrate that this was the true object of the article, it will bo 
sufficient to recall the circumstances which led to it, and to refer to the 
explanation accompanjdng the article. 

When the Constitution was under the discussions which preceded iia 
ratification, it is well known that great apprehensions were expressfid 
by many, lest the omission of some positive exception, from the powers 
delegated, of certain rights, and of the freedom of the press particularly, 
might expose them to danger of being drawn, by construction, within 
some of the powers vested in Congress ; more especially of the power to 
make all laws necessary and proper for carrying their other powers into 
execution. In reply to this objection, it was invariably urged to be a 
fundamencal and characteristic principle of the Constitution, that all 
powers not given by it were reserved ; that no powers were given beyond 
those enumerated in the Constitution, and such as were fairly incident 
to them ; that the power over the rights in question, and particularly 
over the press, was neither among the enumerated powers, nor incident 
to any of them ; and consequently that an exercise of any such power 
would be manifest usurpation. It is painful to remark how nnich tlie 
arguments now employed in behalf of the Seditiun Act, are at variauco 

3y 



610 APPEXDIX E. 

with the reasc/iihig which then justified the Constitution, and invitea ita 
ratification. 

From this posture of the subject resulted the interesting question, m 
so many of tlie conventions, whether the doubts and dangers ascribed 
to the Constitution should be removed by any amendments previous to 
the ratification, or be postponed, in confidence that, as for as they nuglit 
be proper, they would be introduced in the form provided b}^ the Cjd- 
stitution. The latter course was adopted ; and in most of the States, 
ratifications were followed by the propositions and instructions for ren- 
dering the Constitution more explicit, and more safe to the rights not 
meant to be delegated by it. Among those rights, tlie freedom of the 
press, in most instances, is particularly and emphatically mentioned. 
The firm and very pointed manner in which it is asserted in the pro- 
ceedings of the convention of this State will hereafter be seen. 

In pursuance of the . wishes thus expressed, the flirst Congress that 
assembled under the Constitution proposed certain amendments, which 
have since, by the necessar}' ratifications, ])een made a part of it ; among 
which amendments is the article containing, among other prohibitions 
on the Congress, an express declaration that they should make no law 
abridging the freedom of the press. 

"Without tracing farther the evidence on this subject, it would seem 
scarcely possible to doubt that no power whatever over the press was 
supposed to be delegated by the Constitution, as it originally stood, and 
that the amendment was intended as a positive and absolute reservation 
of it. 

But the evidence is still stronger. The proposition of amendments 
made by Congress, is introduced in the following terms : — 

" The conventions of a number of the States, having, at the time of 
their adopting the Constitution, expressed a desire, in order to prevent 
misconstruction or abuse of its powers, that further declaratory and 
restrictive clauses should be added ; and as extending the ground of 
public confidence in the Government, will best insure the beneficent 
ends of its institution." 

Here is the most satisfactory and authentic proof that the several 
ankendments proposed were to be^ considered as either declaratory or 
restrictive, and, whether the one or the other, as corresponding with the 
desire expressed by a number of the States, and as extending the ground 
of public confidence in the Government. 

Under any other construction of the amendment relating to the press, 
<;hau that it declared the press to be wholly exempt from the power of 
Congress, the amendment could neither be said to correspond with the 
desire expressed by a number of the States, nor be calculated to extend 
the ground of public confidence in the Government. 

Nay, more ; the construction employed to justify the Sedition Act 
would exhibit a pheuom"non without a parallel in the political world 



MR. MADISON'S RErORT. CAl 

It would exhibit a number of respectable States, as denying, first, that 
any power over the press was delegated by the Constitution ; as pro- 
posing, next, that no such power was delegated ; and, finally, as 
concurring in an amendment actually recognizing or delegating such a 
power. 

Is then, the Federal Government, it will be asked, destitute of every 
autliority for restraining the licentiousness of the press, and for shielding 
itself against the libellous attacks which may be made on those wiuj 
administer it ? 

The Constitution alone can answer this question. If no such powf r 
be expressly delegated, and if it be not both necessary and proper to 
carry into execution an express power ; above all, if it be expressly for- 
bidden, by a declaratory amendment to the Constitution, — the answer 
must be, that the Federal Government is destitute of all such authority. 

And might it not be asked, in turn, whether it is not more probable, 
under all the circumstances which have been reviewed, that the 
authority should be withheld by the Constitution, than that it should 
be left to a vague and violent construction, whilst so much pains were 
bestowed in enumerating other powers, and so many less important 
powers are included in the enumeration ? 

Might it not be likeAvise asked, whether the anxious circumspection 
which dictated so many peculiar limitations on the general authority, 
would be unlikely to exempt the press altogether ii-om that authority ? 
The peculiar magnitude of some of the powers necessarily comnnttcd to 
the Federal Government ; the peculiar duration required for the functions 
of some of its departments ; the peculiar distance of the seat of its pro- 
ceedings from the great body of its constituents ; and the peculiar 
difficulty of circulating an adequate knowledge of them through any 
other channel ;— will not these considerations, some or other of which 
produced other exceptions from the powers of ordinary Governments, 
altogether, account for the policy of binding the hands of the Federal 
Government from touching the channel which alone can give efficacy to 
its resjbonsibility to its constituents, and of leaving those who administer 
it to a remedy, for their injured reputations, under the same laws, and 
in *;he same tribunals, which protect their lives, their liberties, and their 
properties ? But the question does not turn either on the wisdom of 
the Constitution, or on the policy which gave rise to its particular 
organization. It turns on the actual meaning of the instrument, by 
which it has appeared that a power over the press is clearly excluded 
from the number of powers delegated to the Federal Government. 

3. And in the opinion of the committee, well may it be said, as the 
resolution concludes with saying, that the unconstitutional power 
exercised over the press by the Sedition Act, ought, " more than any 
other, to produce universal alarm ; because it is levelled against that 
right of freely examining pul)lic characters, and measures, and of free 



(512 ArPENDIX E. 

communication among the people thereon, which has evei been justly 
deemed the only etlectual guardian of every other right." 

Without scrutinizing minutely into all the provisions of ihe Sedition 
Act, it will he sufficient to cite so much of section 2d as follows :— " And 
be it further enacted, that if any shall write, print, utter, or puhlish, or 
shall cause or procure to he written, printed, uttered, or published, or 
shall knowingly and willingly assist or aid in writing, printing, uttering, 
or publishing, any false, scandalous, and malicious writing or writings 
against the Government of the United States, or either house of the 
Congress of the United States, with an intent to defome the said 
Government, or either house of the said Congress, or the President, or 
to bring them, or either of them into contempt or disrepute, or to excite 
against them, or either, or any of them, the hatred of the good people 
of the United States, etc.,— then such persons, being thereof convicted 
before any court of the United States having jurisdiction thereof, shall 
be punished by a fine not exceeding two thousand dollars, and by 
imprisonment not exceeding two years." 

On this part of the act the following observations present them- 
selves : — 

1. The Constitution supposes that the President, the Congress, and 
each of its Houses, may not discharge their trusts, either from defect of 
judgment or other causes. Hence they are all made responsible to their 
constituents, at the returning periods of elections ; and the President, 
who is singly intrusted with very gi-eat powers, is, as a further guard, 
subjected to an intermediate impeachment. 

2. Should it happen, as tlie Constitution supposes it may happen, that 
either of these branches of the Government may not have duly discharged 
its trust, it is natural and jiroper, that, according to the cause and de- 
gree of their faults, they should be brought into contempt or disrepute, 
and incur the hatred of the people. 

3. Whether it has, in any case, happened that the proceedings of 
either or all of those branches evince such a violation of duty as to 
justify a contempt, a disrepute, or hatred among the people, can only be 
determined by a free examination thereof, and a free communication 
among the people thereon. 

4. Whenever it may have actually happened that proceedings of this 
sort-are chargeable on all or either of the branches of the Government, it 
is the duty, as well as the right, of intelligent and faithful citizens to dis- 
cuss and promulgate them freely— as well to control them by the censor- 
ship of the public opinion, as to promote a remedy according to the rules 
of the Constitution. And it cannot be avoided that those who are to 
apply the remedy must feel, in some degree, a contempt or hatred against 
the transgressing party. 

5. As the act was passed on July 14, 1798, and is to be in force until 
March 3, 1801, it was of course that, during its continuance, two elec- 



MR. MADISON'S EEPORT. 613 

tions of the entire House of llepreseutatives, an election of a part of the 
Senate, and an election of a President, were to take i)lace. 

(i. That, consequently, during all these elections,— intended, by the 
Constitution, to preserve the purity or to purge the faults of the adnii-a- 
istration,— the great remedial rights of the people were to be exercised, 
and the responsibility of their public agents to be screened, under the 
penalties of this act. 

May it not be asked of every intelligent friend to the liberties of his 
country, whether the power exercised in such an act as this ought not to 
produce great and universal alarm ? "Whether a rigid execution of such 
an act, in time past, would ucjt have repressed that information and 
communication among the peoi)le which is indispensable to the just 
exercise of their electoral rights V And whether sugh an act, if made 
perpetual, and enforced with vigor, would not, in time to come, either 
destroy our free system of government, or prepare a convulsion that 
;night prove equally fatal to it V 

In answer to such questions, it has been pleaded that the writings and 
publications forbidden by the act are those only which are flilse and 
malicious, and intended to defame ; and merit is claimed for the privi- 
lege allowed to authors to justify, by proving the truth of their publica- 
tions, and for the limitations to which the sentence of hue and imprison- 
ment is subjected. 

To those who concurred in the act, under the extraordinary belief 
that the option lay between the passing of such an act, and leaving in 
force the common law of libels, which punishes truth equally with false- 
hood, and submits fine and imprisonment to the indefinite discretion of 
the court, the merit of good intentions ought surely not to be refused. 
A like merit may perhaps be due for the discontinuance of the corporeal 
punishment, which the common law also leaves to the discretion of the 
Court. This merit of intention, however, would have been greater if 
the several mitigations had not been limited to so short a period ; and 
the apparent inconsistency would have been avv.4ded, between justifying 
the act, at one time, by contrasting it with the rigors of the common 
law otherwise in force ; and at another time, by appealing to the nature 
x' the crisis, as requiring the temporary rigor exerted by the act. 

But whatever may have been the meritorious intentions of all or any 
who contributed to the Sedition Act, a very few retlections will prove 
that its baleful tendencj^ is little diminished by the privilege of giving in 
evidence the truth of the matter contained in political writings. 

In the first place, where simple and naked facts alone are in question, 
there is sufficient difficulty in some cases, and sufficient trouble and 
vexation in all, in meeting a prosecution from the Government with the 
"ull and formal proof necessary in a court of law. 

But in the next place, it must be obvious to the plainest minds, that 
opinions and iufurences, and conjectural 'observations, are not (mly in 



61-1: APPENDIX E. 

many cases inseparable from the facts, but ma}^ often be more the ob- 
jects of the prijsecution than the facts themselves ; or may even be alto- 
gether abstracted from particular facts ; and that opinion, and infer- 
ences, and conjectural observations, cannot be subjects of that kind of 
proof which ap]iortains to facts, before a court of law. 

Agaiii : it is no less obvious that the intent to defame, or bring into 
'3ontcmi)t, or disrepute, or batred, — which is made a condition of the 
oflence created by the act, — cannot prevent its pernicious influence on 
the freedom of the pi'ess. Eor, omitting the inquir}-, how far the malice 
of the intent is an inference of the law from the mere publication, it is 
manifestly impossible to punish the intent to bring those who administer 
the Government into disrepute or contempt, without striking at the 
right of freely discussing public characters and measures ; because those 
■who engage in such discussions must expect and intend to excite these 
unfavorable sentiments, so far as they may be thought to be deserved. 
To prohibit the intent to excite those unfavorable sentiments against 
those who administer the Government, is equivalent to a prohibition of 
the actual excitement of them ; and to prohibit the actual excitement 
of them is equivalent to a prohibition of discussions having that ten- 
dency and effect ; which, again, is equivalent to a protection of those 
who administer the Government, if they should at any time deserve the 
contempt or hatred of the people, against being exposed to it, by free 
animadversions on their characters and conduct. Kor can there be a 
doubt, if those in public trust be shielded by penal laws from such stric- 
tures of the press as may expose them to contempt, or disrepute, or 
hatred, where they may deserve it, that, in exact proportion as they 
may deserve to be exposed, will be the certainty nnd criminality of the 
intent to expose them, and the vigilance of i)rosecutiug and punishing 
it ; nor a doubt that a Government thus intrenched in penal statutes 
against the just and natural eftects of a culpable administi'ation, Avil) 
easily evade the responsibilit}' which is essential to a faithful discharge 
of its duty. 

Let it be recollected, lastly, that the right of electing the members of 
the Government constitutes more particularly the essence of a free and 
responsible Government. The value and etlicac}' of this right depends 
on the knowledge of the comparative merits and demerits of the candi- 
dates for public trust, and on the equal freedom, consequently, of ex- 
amining and discussing these merits and demerits of the candidates 
respectively. It has been seen that a number of important elections wi.l 
take place while the act is in force, although it should not be continued 
bej'ond the term to which it is limited. Should there happen, then, as 
is extremel}^ probable in relation to some one or other of the l)ranches 
of the Government, to be competitions between those who are, and those 
who are net, members of the Government, what will be the situations 
of the competitors ? Not equal ; because the characters of the former 



MR. MADISON'S REPORT. 615 

will be covered by the Sedition Act from animadversions exposing them 
to disrepute among the people, whilst the latter may be exposed to the 
contempt and hatred of the people without a violation of the act. What 
will be the situation of the people V aSTot free ; because they will be 
compelled to make their election between competitors whose pretensions 
they are not permitted by the act equally to examine, to discuss, and to 
ascertain. And from both these situations will not those in power do> 
rive an undue advantage for continuing themselves in it ; which, b^ 
impairing the right of election, endangers the blessings of the Govern 
ment founded on it ? 

It is with Justice, therefore, that the General Assembly have affirmed, 
in the resolution, as well that the right of freely examining public 
characters and measures, and of communication thereon, is the onlj* 
effectual guardian of every other right, as that this particular right is 
levelled at by the power exercised in the Sedition Act. 

The resolution next in order is as follows : 

' ' That this State having, by its Convention, which ratified the Federal 
Constitution, expressly declared that, among other essential rights, ' the 
liberty of conscience and of the press cannot oe cancelled, abridged, 
restrained, or modified, by any authority of the United States ;' and, 
from its extreme anxiety to guard these rights from every possible 
attack of sopliistry and ambition, having, with other States, recom- 
mended an amendment for that purpose, which amendment was in due 
time annexed to the Constitution, it would mark a reproachful incon- 
sistency, and criminal degeneracy, if an indiflereiice Avere now shown to 
the most palpable violation of one of the rights thus declared and secured, 
and to the establishment of a i)recedent Avhich may be fatal to the 
other." 

To place this resolution in its just light, it will be uecesssary to 
recur to the act of ratification by Virginia, which stands in the enhuiug 
farm : 

"We, the delegates of the people of Virginia, duly elected in pursu- 
ance of a recommendation from the General Asseml:)ly, and now met in 
convention, having fully and freely investigated and discussed the pro- 
ceedings of the Federal Convention, and being prepared, as well as the 
most mature deliberation hath enabled as, to decide thereon, — DC, in 
the name and in behalf of the people of Virginia, declare and make 
known, that the powers granted under the Constitution, being derived 
Irom the people of the United States, may be res.umed by them whenso- 
ever the same shall be perverted to their injury or oppression ; and that 
every power not granted thereby remains with them, and at their will. 
That, therefore, no right of any denomination can be cancelled, 
abridged, restrained, or modified, by the Congress, by the Senate or the 
House of Representatives, acting in any capacity, by the President, or 
any denartment or officer of the United States, except in those instances 



616 APPENDIX E. 

in which power is given hy the Constitution for those purposes ; and 
that, among other essential rights, the liberty of conscience and of the 
press cannot he cancelled, abridged, restrained, or modified, by any 
authority of the United States." 

Here is an express and solemn declaration by the Convention of the 
State, that they ratified the Constitution in the sense that no right of 
any denomination can be cancelled, abridged, restrained, or modified, 
by the Government of the United States, or any part of it, except in 
those instances in which power is given by the Constitution ■, and in the 
sense, particularly, "that among other essential rights, the liberty of 
conscience and freedom of the press cannot be cancelloil, abridged, 
restrained, or modified, by any authority of the United States." 

Words could not well express, in a fuller or more forcible manner, the 
understanding of the Convention, that the liberty of conscience and 
freedom of the press were equally and completely exempted from all au- 
thority whatever of the United States. 

Under an anxiety to guard more effectually these rights against every 
possible danger, the Convention, after ratifying the Constitution, pro- 
ceeded to prefix to certain amendments proposed by them, a declaration 
of rights, in which are two articles providing, the one for the liberty of 
conscience, the other for the freedom of speech and of the press. 

Similar recommendations having proceeded from a number of other 
States ; and Congress, as has been seen, having, in consequence thereof, 
and with a view to extend the ground of public confidence, proposed, 
among other declaratory and restrictive clauses, a clause expressly 
securing the liberty of conscience and of the press ; and Virginia having 
concurred in the ratifications which made them a part of the Constitu- 
tion,— it will remain with a candid public to decide whether it would 
not mark an inconsistenc}^ and degeneracy, if an indifference were now 
shown to a palpable violation of one of those rights — the freedom of the 
press ; and to a precedent, therein, which may be fatal to the other — the 
free exercise of religion. 

That the precedent established by the violation of the former of these 
rights may, as is affirmed by the resolution, be fatal to the latter, ai> 
pears to be demonstrable by a comparison of the grounds on which they 
respectively rest, and from the scope of reasoning by which the power 
of the former has been vindicated. 

First. Both of these rights, the liberty of conscience, and of the press, 
rest equally on the original ground of not being delegated by the Con- 
stitution, and consequently withheld from the Governmenl. Any con- 
struction, therefore, that would attack this original security for the :ne, 
must have the like effect on the other. 

Secondly. They are both equally secured by the supplement to the 
Constitution ; being both included in the same amendment, made at the 
same time and by the same authority. Any construction or argument, 



MR. MADISON'S REPORT. 617 

then, which would turn the amendment into a grant or acknowledi^- 
uient of power, with respect to the press, might he equally applied to the 
freedom of religion. 

lldrahj. If it be admitted that the extent of the freedom of the press, 
secured by the amend zieut, is to be measured by the common law on 
this subject, the same authority may be resorted to for the standard 
which is to tix the extent of the " free exercise of religion." It cannot 
be necessary to say what thio standard. would be — whether the common 
law be taken sold}) as the unwritten, or as varied by the written la V 
of England. 

Fourthly. If the words and phrases in the amendment are to be con- 
sidered as chosen with a studied discrimination, which yields an argu- 
ment for a power over the press, under the limitation that its freedom 
be not abridged, the same argument results from the same considera- 
tion, for a power over the exercise of religion, under the limitation that 
its freedom be not prohibited. 

For, if Congress may regulate the freedom of the press, provided they 
do not abridge it, because it is said only, "they shall not abridge it," 
and is not said, "they shall make no law resi)ecting it," the analogy of 
reasoning is conclusive, that Congress may regulate, and even ahridye, 
the free exercise of religion, pro\ .ded they do not prohibit it; because it 
is said only, "they shall not prohibit;" and is not said, "they shall 
make no law resioecting, or no law abridging it." 

Tlie General Assembly were governed by the clearest reason, then, in 
considering the Sedition Act, which legislates on the freedom of the 
press, as establishing a precedent that may be fatal to the liberty of 
conscience ; and it will be the duty of all, in proportion as they Yaitie 
the security of the latter, to take the alarm at every encroachment on 
the former. 

Tlie two concluding resolutions only remain to be examuied. They 
are in the words following : 

" That the good people of this Commonwealth, having ever feU, and 
continuing to feel, the most sincere affection for their brethren of the 
other States, the truest anxiety for establishing and perpetuating the 
tinion of all, and the most scrupulous fidelity to that Constitution which 
is the pledge of mutual friendship and the instrument of mutual happi- 
ness, — the General Assembly doth solemnly appeal to the like disposi- 
tions in the other States, in confidence that they will concur with this 
Commonwealth in declaring, as it does herel)y declare, that tne acts 
aforesaid are unconstitutional •, and that the necessary and proper 
measures will be taken, by each, for co-operating Avith this State, in 
maintaining, unimpaired, the authorities, rights, and liberties, iBMcrved 
to the States respectively, or to the people. 

" That the Governor be desired to transmit a copy of the loregoing 
resolutions to the execntive authority of each of the other Statea. witU a 



618 APPENDIX E. 

requosl that the same may he commmiicated to the Legislature thereof* 
and that a copy be furnished to each of the Senators and Representa- 
tives representing tliis State in the Congress of the United States." 

The fairness and regularity <if the course of proceeding here pursued, 
have not protected it against objections even from sources too respect- 
able to be disregarded. 

It has been said that it belongs to the Judiciary of the United States, 
and not the State Legislatures, to declare the meaning of the Federal 
Constitutiou. 

P>ut a declaration that proceedings of the Federal Government are 
not Avarranted by the Constitution, is a novelty neither among the citi- 
zens nor among the Legislatures of the States ; nor are the citizens or 
the Legislature of Virginia singular in the example of it. 

Nor can the declarations of either, whether affirming or denying the 
constitutionality of measures of the Federal Government, or whether 
made before or after judicial decisions thereon, be deemed, in any point 
of view, an assumption of the office of the Judge. The declarations in 
such cases are expressions of opinion, unaccompanied with any other 
eliect than what they may produce on opinion, by exciting reflection. 
The expositions of the Judiciary, on the other hand, are carried into 
immediate effect by force. The former may lead to a change in the 
legislative expression of the general will — possibly to a change in the 
opinion of the Judiciary ; the latter enforces the general will, whilst 
that M'ill and that opinion continue unchanged. 

And if there be no impropriety in declaring the unconstitutionality of 
proceedings in the Federal Government, where c'an there be the impro- 
priety of communicating the declaration to other States, and inviting 
their concurrence in a like declaration ? What is allowable for one, 
must be allowable for all ; and a free communication among the States, 
where the Constitution imposes no restraint, is as allowable among the 
State Governments as among other public bodies or private citizens. 
This consideration derives a weight that cannot be denied to it, from 
the relation of the State Legislatures to the Federal Legislature as the 
immediate constituents of one of its branches. 

The Legislatures of the States have a right also to originate amend- 
ments to the Constitution, by a concurrence of two thirds of the whole 
number, in applications to Congress for the purpose. When new States 
are to be formed by a junction of two or more States, or parts of States, 
the Legislatures of the States concerned are, as well as Congress, to 
concur in the measure. The States have a right also to enter into 
agreements or compacts, with the consent of Congress. In all such 
cases a communication among them results from the object which is 
common to them. 

It is lastly to be seen, whether the confidence expressed by the Con- 
stitution, that the necessary and proper measures would be taken by the 



MR. MADISON'S EEPORT. 619 

oiher States for co-operating with Virginia in maintaining the rights 
reserved to the States, or to the people, ha in any degree Uable to the 
objections raised against it. 

If it be liable to objections, it must be because either the object or the 
means ai"e objectionable. 

The object, being to maintain what the Constitution has ordained, is 
in itself a laudable object. 

The means are expressed in the terms "the neces&ary and proper 
measures." A proper object was to be pursued by the means both 
necessary and proper. 

To find an objection, then, it must be shown that some meaning was 
annexed to these general terms which was not proper ; and, for this 
purpose, either that the means used by the General Assembly were an 
example of improper means, or that there were no proper means to 
which the terms could refer. 

In the example, given by the State, of declaring the Alien and Sedition 
Acts to be unconstitutional, and of communicating the declaration to 
other States, no trace of improper means has appeared. And if the 
other States had concurred in making a like declaration, supported, too, 
by the numerous applications tlowing immediately from the people, it 
can scarcely be doubted that these simple means would have been as 
suflicient as they are unexceptionable. 

It is no less certain that other means might have been emiiloyed 
which are strictly Avithin the limits of the Constitution. The Legis- 
latures of the States might have made a direct representation to 
Congress, with a view to obtain a rescn.ding of the two oflensive acts , or 
they might have represented to their respective Senators in Congress 
their wish that two thirds thereof would propose an explanatory amend- 
ment to the Constitution ; or two thirds of themselves, if such had been 
their opinion, might, by an application to Congress, have obtained a 
Convention for the same object. 

These several means, though not equally eligible in themselves, uor 
probably to the States, were all constitutionally open for consideration. 
And if the General Assembly, after declaring the two acts to be 
unconstitutional, (the first and most obvious proceeding on the subject,) 
did not undertake to point out to the other States a choice among the 
further measui'es that might become necessary and proper, the reserve 
will not be misconstrued by liberal minds into any culpable imputation. 

These observations appear to form a satisfactory reply to every 
objection which is not founded on a misconception of the terms employed 
rn the resolutions. There is one other, however, which may be of too 
much importance not to be added. It cannot be forgotten that, among 
th( arguments addressed to those who apprehended danger to liberty i'vnn 
the estal)lishment of the General Government over so great a couniry, 
the appeal was emphatically made to. the intermediate existence u!' the 



620 APPENDIX E. 

Sfate Governments between the people and that Government, to the 
vi,i:;ilance with which they would xlcscry the first symptons of usurpation, 
and to the promptitude with which they would sound the alarm to the 
public. This argument was probably not without its efl'ect ; and if it 
wiis a proper one then to recommend the establishment of a Constitution» 
it must be a proper one now to assist in its interpretation. 

The only part of the two concluding resolutions that remains to be 
n()ti(-e(l, is the repetition, in the first, of that warm aflcction to the 
Union and its members, and of that scrupulous fidelity to the Consti- 
tution, which have been invariably felt by the jicople of this .State. As 
the proceedings were introduced with these sentiments, they could not 
be more properly closed than in the same manner. Should there be any 
60 far misled as to call in question the sincerity of these professions, 
whatever regret may be excited by the error, the General AssemDly 
cannot descend into a discussion of it. Those who have listened to the 
suggestion can only be left to their own recollection of the part which 
this State has borne in the establishment of our national independence, 
or the establishment of our national Constitution, and in maintaining 
under it the authority and laws of the Union, without a single exception 
of internal resistance or commotion. By recurring to the facts, they 
will be able to convince themselves that the representatsive of the people 
of Virginia must be above the necessity of opposing any other shield to 
attacks on their national patriotism, than their own conscientiousness, 
and the justice of an enlightened public ; who will perceive in the 
resolutions themselves the strongest evidence of attachment, both to the 
Constitution and the Union, since it is only by maintaining the different 
Governments, and the departments within their respective limits, that 
the blessings of either can be peri)etuated. 

The extensive view of the subject, thus taken by the committee, has 
led them to report to the House, as the result of the -whole, the following 
resolution : — 

Iiesol\-ed, That the General Assembly, having carefully and respect- 
fully attended to the proceedings of a number of the States, in answer to 
the Resolutions of December 21, 179S, and having accurately and fully re- 
examined and reconsidered the latter, find it to be their indispensable duty 
to adhere to the same, as founded in truth, as consonant with the Con- 
stitution, and as conducive to its preservation ; and more especially to 
be their duty to renew, as they do hereby renew, their Protest against 
Alien and Sedition Acts, as palpable and alarming infractions of the 
Constitution. 



MR. nOLCOMBE'S ADDRESS. 621 



F. 



EXTRACTS FROM AN ADDRESS BY THE HON. JAMES P 
HOLCOMBE, DELIVERED BEFORE THE VIRGINIA STATE 
AGRICULTURAL SOCIETY, AT ITS SEVENTH ANNUAL 
MEETING, NOVEMBER 4, 18.38. 

Personal aud political liberty are both requisite to develop the higlust 
style of man. They furnish the amplest opportunities for the exercise 
of that self-control which is the germ and essence of every virtue, and 
for that expansive and ameliorating culture by which our whole nature 
is exalted in the scale of being, and clothed with the grace, dignity and 
authority, becoming the lords of creation. Whenever the population ol 
a State is homogeneous, although slavery may perform some important 
functions in quickening the otherwise tardy processes of civihzatiou, it 
ought to be regarded as a temporary and provisional relation. If there 
are no radical dilierences of physical organization or moral character, 
the barriers between classes are not insurmountable. The discipline of 
education and liberal institutions, may raise the serf to the level of the 
baron. Against any artificial circumscription seeking to arrest that 
tendency to freedom which is the normal state of every society of equals, 
human nature would constantly rise in rebellion. But where two dis- 
tinct races are collected upon the same territory, incapable from any 
cause of fusion or severance, the one being as much superior to the other 
in strength and intelligence as the man to the child, there the rightful 
relation between them is that of authority upon the one side, and subo.> 
dination in some form, upon the other. Equality, personal and political, 
could not be established without inllicting the climax of injustice upcju 
the superior, and of cruelty on the inferior race : for if it were possib e 
to preserve such an arrangement, it would wrest the sceptre of dominioa 
from the wisdom and strength of society, and surrender it to its weak- 
ness and folly. " Of all rights of man," says Carlylo' " the right of the 
ignorant man to be guided by the wiser, to be gently and firmly held in 
the true course, is the indispensablest. Nature has ordained it from the 
first. Society struggles towards perfection by conforming to and accom- 
plishing it, more and more. If freedom have any meaning, it means 
enjoyment of this right, in which all other rights are enj(jyed. It is a 
■divine right and duty on both sides, and the sum of all social duties be- 
tween the two." Under the circumstances I have supposed, no intelli- 
gent man could hesitate, except as to the form of subordination : nor has 
entire equality been ever allowed in society where the inferior race con- 
stituted an element of any magnitude. * * * * 

But when we are settling the law of a society embracing in its 
bosom distinct and unequal races, the problem is complicated by ele- 



622 APPENDIX F. 

ments which create the gravest doubt whether personal liberty will 
prove a blessing or a curse. It may become a question between the 
slavery, and the extinction or further deterioration of the inferior race. 
Thus, if it is difficult to procure the means of subsistence from density 
of population or other cause, and if the infei'ior race is incapable of sus- 
taining a competition with the superior in the industrial pursuits of life, 
a condition of freedom which would involve such competition, must 
either terminate in its destruction, or consign it to hopeless degradation. 
If, under these circumstances, a system of personal servitude gave 
reasonable assurance of preserving the inferior race, and gradually im- 
parting to it the amelioration of a higher civilization, no Christian 
statesman could mistake the path of duty. Natural law, illuminated 
in its decision by History, Philosophy, and Religion, would not only 
clothe the relation with the sanction of justice, but lend to it the lustre 
of mercy. It will not, I apprehend, be difficult to show that all these 
conditions apply to African slavery in the United States. Look at tho 
races which have been In'ought face to face in unmanageable masses, 
upon this continent, and it is im])ossible to mistake their relative posi- 
tion. The one still filling that humble and subordinate place, which, as 
the pictured monuments of Egypt attest, it has occupied since the dawn 
of history ; a race which during the long-revolving cycles of intervening 
time has founded no empire, built no towered city, invented no art, dis- 
covered no truth, bequeathed no everlasting possession to the future, 
through law-giver, hero, bard, or benefactor of mankind : a race which 
though lifted immeasurably above its native barbarism by the refining 
inrtuence of Christian servitude has yet given no signs of living and self- 
sustaining culture. The other, a great composite race which has 
incorporated into its bosom all the vital elements of human progress ; 
which, crowned with the traditions of history and bearing in its hands 
the most precious trophies of civilization, still rejoices in the overfiowinw 
energy, the abounding strength, the unconquerable will, which have 
made it " the heir of all the ages ;" and which, with aspirations unsatis- 
fied by centuries of toil and achievement, still vexes sea and laud with 
its busy industry, binds coy nature faster in its cliains, embellishes life 
more prodigally with its arts, kindles a wider inspiration from the foun- 
tain lights of freedom, follows knowledge, like a sinking star, beyond the 
utmost bound of human thought. * * * * 

The whole reasoning of modern philanthropy upon this subject has 
been vitiated, by its overlooking those fundamental moral diflerences 
between the races, which constitute a far more important element in 
the political arrangements of society, than relative intellect>ial power. 
It is immaterial how these dinbrences have been created. Their exist- 
ence is certain; and if capable of removal at all, they ai'c yet likol}' to 
endure for such an indefinite period, that in the consideration of any 
practical problem, we must regard them as permanent. The collective 



ME. IIOLCOMBE'S ADDRESS. 623 

Buporiority of a race can no more exempt it from the obligations <if 
justice and mercy, than the personal superiority of an individual ; but 
where unequal races are compelled to live together, a sober and inhlli- 
gent estimate of their several aptitudes and capacities must form iho 
basis of their social and political organization. The intellectual weak- 
ness of the black man is not so characteristic, as the moral qualities 
which distinguish him from his white brother. The warmest friends 
of emancipation, amongst others the late Dr. Channing, have acknow- 
ledged that the civilization of the African must present a different type 
from that of the Caucasian, and resemble more the development of the 
East than the West. His miture is made up of tlie gentler elements. 
Uocile, affectionate, light-hearted, facile to impression, reverential, he 
is disposed to look without for strength and direction. In the courage 
that rises with danger, in the energy that would prove a consuming lire 
to its possessor, if it found no object upon which to spend its strength, 
in the proud aspiring temper which would render slavery intolerable, he 
is far inferior to other races. Hence, subordination is as congenial to 
his moral, as a warm latitude is to his physical nature. Freedom is not 
" chartered on his manly brow," as on that uf the native Indian. Un- 
kiudness awakens resentment, but servitude alone carries no sense of 
degradation fatal to self-respect. * * * * 

The mutual good will of distinct classes has, in all ages, been de- 
pendent upon a well defined subordination. This opinion is confirmed 
by the testimony of one of the most eloquent writers of New England, 
in reference to the workings of its social system as they fell under his 
personal observation. " I appeal," says Dana, in his Essay on Law as 
suited to Man, "to those who remember the state of our domestic rela- 
tions, wdien the old Scriptural terms of master and servant were in use. 
I do not fear contradiction when I say there was more of mutual good 
will then than now ; more of trust on the one side and fidelity on the 
other ; more of protection and kind care, and more of gratitude and 
affectionate respect in return ; and because each understood well his 
place, actually more of a certain freedom, tempered by gentleness and 
by deference. From the very fact that the distinction of classes was 
more marked, the bond between the individuals constituting these two, 
was closer. As a general truth, I verily believe that, with the exception 
of near-blood relationships, and here and there peculiar friendships, the 
attaclnnent of master and servant was closer and more enduring than 
that (jf almost any other connection in life. The young of this day, 
under a change of fortime, will hardly live to see the eye of an old, 
faithful servant fill at their fall ; nor will the old domestic be longer 
housed and warmed by the fireside of his master's child, or be followed 
by him to the grave. The blessed sun of those good old days has gone 
down, it may be for ever, and it is very cold." It is through the opera- , 
Kiou of these kindl^' sentiments, which it awakens on both sides, that 



624 APPENDIX F. 

African slaVciy reconciles the antagonism of classes that has elsewhere 
reduced the highest statesmanship to the verge of despair, and becomes 
the great Peace-maker of our society, converting inequalities, which aro 
eources of danger and discord in other lands, into pledges of reciprocal 
service, and bonds of mutual and intimate friendship. * * * 

If I have at all comprehended the elements which should enter into 
the determination of this momentous problem of social welfare and 
public authority, the existence of African Slavery amongst us, furnishes 
no just occasion for self-reproach ; much less for the presumptuous 
rebuke of our fellow man. As individuals, we have cause to humble 
ourselves before God, for the imperfect discharge of our duties in this, 
and in every other relation of life : but for its justice and morality as an 
element of our social polity, we may confidently appeal to those future 
ages, which, when the bedimming mists of passion and prejudice have 
vanished, will examinine it in the pure light of truth, and pronounce 
the final sentence of impai'tial History. Beyond our own borders there 
has been no sober and intelligent estimate of its distinctive features ; no 
just ai)prehension of the nature, extent, and permanence of the dis- 
parities between the races, or of the fatal consequences to the slave, of a 
freedom which would expose him to the unchecked selfishness of a 
superior civilization ; no conception approaching to the reality of the 
power which has been exerted by a i)ublic sentiment, springing from 
Christian prmciple, and sustained by the- universal instincts of self- 
interest, in tempering the severity of its restraints, and impressing upon 
it the mild character of a patriarchal relation ; no rational anticipation 
of the improvement of which the negro would be capable under our 
form of servitude, if those who now nurse the wild and mischievoua 
dream of peaceful emancipation, should lend all their energies to the 
maintenance of the only social system under which his progressive 
amelioration appears possible. African slavery is no relic of barbarism 
to which we cling from the ascendency of semi-civilized tastes, habits, 
and principles ; but an adjustment of the social and political relations of 
the races, consistent with the purest justice, commended by the high- 
est expediency, and sanctioned oy a comprehensive and enlightened 
humanity. It has no doubt been sometimes abused by the base and 
wicked passions of our fallen nature to purposes of cruelty and wrong ; 
but where is the school of civilization from which the stern and whole- 
some discipline of sutiering has been banished V or the human landscape 
not eaddened by a dark flowing stream of sorrow 'i* Its history, when 
fairly written, will be its ample vindication. It has weaned a race of 
savages from superstition and idolatry, imparted to them a general 
knowledge of the precepts of the true religion, implanted in their bosom 
sentiments of humanity and principles of virtue, developed a taste for 
the arts and enjoyments of civilized life, given an unknown dignity and 
elevation to their type of physical, moral and intellectual man, and tor 



TOOMBS' LECTURE IN BOSTON. 625 

two centuries during which this hmnaniziug process has taken place, 
made for their subsistence and comfort, a more bountiful provision, 
than was ever before enjoyed in any age or country of the world by a 
laboring class. If tried by the test which we apply to other institutions, 
the whole sum of its results, there is no agency of civilization which has 
accomplished so much in the same time, for the happiness and advance- 
ment of mankind. 



G. 

A LECTURE BY HON. ROBERT TOOMBS, DELIA^ERED IN 
THE TREMONT TEMPLE, BOSTON, MASSACHUSETTS, 
JxlNUARY 24, 1856. 

SLAVEIIY — ITS CONSTITUTIONAL STATUS^ITS INFLUENCE ON THIS 
AFniCAN KACE AND SOCIETY. 

I propose to submit to you this evening some considerations and re- 
flections upon two points. 

1st. The constitutional powers and duties of the Federal Government 
in relation to Domestic Slavery. 

2d. The influence of Slavery as it exists in the United States upon the 
Slave and Society. 

Under the first head I shall endeavor to show that Congrefes has no 
power to limit, restrain, or in any manner to impair slavery : but, on 
the contrary, it is bound to protect and maintain it in the States whei-Q 
it exists, and wherever its flag floats, and its jurisdiction is paramount. 

On the second point, I maintain that so long as the African and Cau- 
casian races co-exist in the same society, that the subordination of the 
African is its normal, necessary and proper condition, and that such 
subordination is the condition best calculated to promote the highest 
interest and the greatest happiness of both races, and consequently of 
the whole society : and that the abolition of slavery, under these condi- 
tions, is not a remedy for any of the evils of the system. I admit that 
the truth of these propositions, stated under the second point, is essen- 
tially necessary to the existence and permanence of the system. They 
rest on the truth that the white is the superior race, and the black the 
inferior, and that subordination, with or without law, will be the status 
of the African in this mixed society, and, therefore, it is the interest of 
both, and especially of the black race, and of the wliole society, that this 
status should be fixed, controlled, and protected by law. Tlie perfect 
equality of the superior race, and tlie legal subordination of the inferior, 
are the foundations on which we have erected our n.[)ublican systems 
40 



626 APPEXDTX G. 

Their souudnoss must be tested by their conformity to the sovereignty 
of right, the universal law which ought to govern all people iu all centu- 
ries. This sovereignty of right is justice, commonly called natui-al jus- 
tice, not the vague uncertain imaginings of men, but natural justice aa 
nterpreted by the written oracles, and read by the light of the revelati:)ns 
of nature's God. In this sensa I recognize a ''higher law," and the 
duty of all men, by legal and proper means, to bring every societ}' iu 
conformity with it. 

I proceed to the consideration of the first point. 

Tlie old thirteen States, before the Revolution, were dependent colo- 
aics of Great Britain — each was a separate and distinct political com- 
munity, with diftereut laws, and each became an independent and sove- 
reign State by the Declaration of Independence. At the time of this 
declaration slavery was a, fact, and a fact recognized by law in each of 
them, and the slave trade was lawful commerce by the laws of nations 
and the practice of mankind. This declaration was drafted by a slave- 
holder, adopted by the representatives of slaveholders, and did not 
emancipate a single African slave ; but, on the contrary, one of the 
charges which it submitted to the civilized world against King Georj^e 
was, that he had attempted to excite " domestic insurrection among 
us." At the time of this declaration we had no common Government ; 
the Articles of Confederation wex-e submitted to the representatives of 
the States eight days afterwards, and were not adopted by all of the 
States until 1781. These loose and imperfect articles of union sufficed 
to bring us successfully through the Revolution. Common danger was 
d stronger bond of union than these Articles of Confederation ; after that 
ceased, they were inadequate to the purposes of peace. They did not 
emancipate a single slave. 

The Constitution was framed by delegates elected by the State Legis- 
latures. It was an emanation from the sovereign States as independent, 
separate communities. It was ratiiied by conventions of these separate 
States, each acting for itself The members of these conventions repre- 
sented the sovereignty of each State, but they were not elected by the 
whole people of cither of the States. Minors, women, slaves, Indians, 
Africans, bond and free, were excluded from participating in this act 
of sovereignty. Neither were all the white male inhabitants, over 
twenty-one years old, allowed to participate in it. Some were excluded 
because they had no land, others for the want of good characters, others 
again because they were non-freemen, and a large number were excluded 
for a great variety of still more unimportant reasons. None exercised 
this high privilege except those upon whom each State, for itself, had 
adjudged it wise, safe, and prudent to confer it. 

By this Constitution these States granied to the Federal Government 
certain well defined and clearly specified powers in order '■'■ to make a 
riuyre, perfect Union, establish justice, insure domestic tranquillity, X)rovida 



TOOMBS' LECTURE IN BOSTON. 627 

for the tommon defence and general welfare, and to secure the hlesdngs of 
liberty to {themselves and their) poster ity.'>'' And with great wisdom and 
forecast tliis Constitution lays down a plain, certain, and suflicient rule 
for its own interpretation, by declaring that " the poicers not herein dele- 
gated to the United States by the Constitution, nor prohihited by it to thn 
States, are reserved to the States respectively, or to the people.'''' The 
Federal Government is therefore a limited Government. It is limited 
expressly to the exercise of the enumerated powers, and of such others 
only '•'■lohich shall be necessary and proper to carry into execution'''' these 
enumerated powers. The declaration of the purposes for which these pow- 
ers were granted can neither increase or diminish them. If any one or 
all of them were to fail by reason of the insufficiency of the granted pow- 
ers to secure them, that would be a good reason for a new grant, :ut 
could never enlarge the granted powers. That declaration was itself a 
limitation instead of an enlargement of the granted powers. If a power 
expressly granted be used for any other purpose than those declared, 
such use would lie a violation of the grant and a fraud on the Constitu- 
tion, and therefore it follows, that if anti-slaveiy action by Congress is 
not warranted by any express power, nor within any of the declared 
purposes for which any such power was granted, the exercise of even a 
granted power to effect that action, under any pretence whatever, would 
ftill under the just condemnation of the Constitution. 

The history of the times, and the debates in the convention which 
framed the Constitution, show that this whole subject was much con- 
sidered by them, and " perplexed them in the extreme ;" and these pro- 
visions of the Constitution which related to it, were earnestly considered 
by the State conventions, which adopted it. Incipient legislation, pro- 
viding for emancipation, had already been adopted by some of the 
States. Massachusetts had declared that slavery was extinguished in 
her limits by her bill of rights ; the African slave trade had been legis- 
lated against in many of the States, including Virginia and Maryland, 
and North Carolina. The public mind was unquestionably tending to- 
wards emancipation. This feeling displayed itself in the South as well 
as in the North. Some of the delegates from the present slaveholding 
States thought that the power to al)olish, not only the African slave 
trade, but slavery in the States, ought to be given to the Federal Gov- 
ernment ; and that the Constitution did not take this shape, was made 
one of the most prominent objections to it by Luther Martin, a distin- 
guished member of the convention from Maryland, and Mr. Mason, of 
Virginia, was not far behind him in his emancipation prmciples ; Mr. 
Madison sympathized to a great extent, to a much greater extent than 
some of the representatives from Massachusetts, in this anti-slavery 
feeling ; hence we find that anti-slavery feelings were extensively in- 
dulged in by many members of the convention, both from slaveholding 
(tnd nou-slavehulding Stales. Tliis fact has led to many an'l gr;i".e 



628 APPENDIX G. 

errors ; artful and unscrupulous men have used it much to deceive the 
northern public. Mere opinions of individiial men have been relied 
upon as authoritative expositions of the Constitution. Our reply to 
them is simple, direct : they were not the opinions of the collective body 
of the people, who made, and who had the right to make this Govern- 
ment ; and, therefore, they found no place in the organic law, and by 
that alone are we bound ; and, therefore, it concerns us rather to 
know what was the collective will of the whole, as affirmed by the sove- 
reign States, than what were the opinions of individual men in the con- 
vention. We wish to know what was done by the whole, not what some 
of the members thought was best to be done. The result of the struggle 
was, that not a single clause was inserted in the Constitution giving 
jjower to the Federal Government anywhere, either to abolish, limit, 
restrain, or in any other manner to impair the system of slavery in the 
United States : but on the contrary every clause ^n hich was inserlea in 
the Constitution on this subject, does in fact, and was intended either to 
i7icrease it, to strengthen it, or to protect it. To support these positions, 
I appeal to the Constitution itself, to the contemporaneous and all sub- 
sequent authoritative interpretations of it. The Constitution provides 
for the increase of slavery by proliibiting the suppression of the slave 
trade for twenty years after its adoi)tion. It declares in the 1st clause 
of the 9th section of the first article, that '■'■the migration or importation 
of such persons as aii.v of the States now existing shall think proper to 
adr:'dt, shall not he prohibited by the Congress prior to the year 1808, hut a 
tax or duty may be imposed on such iynportation, not exceeding ten dollars 
for each person.'''' After that time it was left to the discretion of Con- 
gress to pi'ohibit, or not to prohibit, the African slave trade. The ex- 
tension of this traffic in Africans from 1800 to 1808, was voted for by 
the whole of the New England States, including Massachusetts, and 
opposed by Vii'ginia and Delaware ; and the clause was inserted in the 
Constitution by votes of the New England States. It fostered an active 
and profitable trade for New England capital and enterprise for twenty 
years, by which a large addition was made to the original stock of 
Africans in the United States, and thereby it increased slavery. This 
clause of the Constitution was specially favored : it was one of those 
clauses wnich was protected against amendment by article fifth. 

Slaver) is strengthened by the 3d clause, 2d section of 1st article, 
■which fixes the basis of representation according to nujnbers by providing 
Lhat the ■■' numbers shall be determined by adding to the whole number of 
free jicrsons, including those bound to service for a term of years, and ex- 
rduding Indians not taken, three-ffths of all other persons.''^ This provi- 
sion strengthens slavery by giving the existing slaveholding States many 
more representatives in Congress than they would have if slaves were 
considered only as property ; it was much debated, but finally adopted, 
vyith the full understanding of its import, by a great majority. 



TOOMBS' LECTUEE IN BOSTON. 629 

The Couatitutiou protects it, implied]}', by withholding all power to 
injure it, or limit its duration, but it protects it expressly hy the '3d dame 
of 2(1 section of the 4tlt arti'dc, by the ith section of the Uh article, and by 
the loth clause of the 1st article. The 3d clause of the 2d section, -ith 
article, provides that "no persons held to service or labor in cne State 
by the laws thereof, escaping into another, shall in consequence of any 
law or regulation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such service or 
labor maybe due." The 4th section of the 4th article provides that 
Congress shall protect each State "on application of the Legislature (or 
of the Executive when the Legislature cannot be convened) against 
domestic violence." The loth clause of the 8th section of the 1st article, 
makes it the duty of Congress "to provide for calling forth the militia 
to execute the laws of the Union, suppress insurrections, and repel inva- 
sions." The tirst of these three clauses last referred to protects slavery 
by following the escaping slave into non-slaveholding States and return- 
ing him to bondage ; the other clauses place the whole military power of 
the Eepublic in the hands of the Federal Government to repress 
" domestic violence" and " insurrections." Under this Constitution, if 
he flies to other lands, the supreme law follows, captures, and returns 
him ; if he resists the law by v.-hich he is held in bondage, the same Con- 
stitution brings its military pc/wer to his subjugation. There is no 
limit to this protection, it must exist as long as any of the States toler- 
ate domestic slavery and the Constitution, \naltered, endures. None of 
these clauses admit of misconception or doubtful construction. They 
were not incorporated into the charter of our liberties by surprise or 
inattention, they were each and all of them introduced into that body, 
debated, referred to committees, reported upon, and adopted. Our con- 
struction of them is supported by one unbroken and harmonious current 
of decisions and adjudications by the Executive Legislature, and Judi- 
cial Departments of the Government, State and Federal, from President 
Washington to President Pierce. Twenty representatives in the Con- 
gress of "the United States hold their seats to-day, by the virtue oi" one 
of these clauses. The African slave trade was carried on its whole ap- 
pointed period under another of them. Thousands of slaves have been 
delivered up under another, and it is a just cause of congratulation to 
the whole country that no occasion has occurred to call into action the 
remaining clauses which have been quoted. 

These constitutional provisions were generally acquiesced in even by 
those who did not approve them, until a new and less obvious question 
sprung out of the acquisition of territory. When the Constitution was 
adopted the ques:;ion of slavery had been settled in the northwest 
territory by the articles of session of that territory by the State of 
YirL;,inia, and at that time the United States had not an acre of land 
over which it claimed uufettered jurisdiction except a disputetl c'.aim on 



630 APPENDIX G. 

our southwestern bouudary, which will hereafter be considered in its 
appropriate connection. The acquisition of Louisiana imposed upon 
Congress the necessity of its government. This duty was assumed and 
performed for the general benefit of the whole country without challenge 
or question Hir nearly seventeen years. Equity and good faith shielded 
iL from criticism. Eut in 1819, thirty years after the Constitution was 
adopted, upon application of Missouri for admission into the Union, itie 
extraordinary pretension was, for the first time, asserted by a majoritv 
of the non-slaveholding States, that Congress not only had the power to 
prohibit the extension of slavery into new teri'itories of the Republic, 
but that it had power to compel new States seeking admission into the 
Union to prohibit it in their own constitutions and mould their domestic 
policy in all respects to suit the opinions, whims, or caprices of the 
Federal Government. This novel and extraordinary pretension subjec- 
ted the whole power of Congress over the territories to the severest 
criticism. Abundant authority Avas found in the Constitution to man- 
age this common domain merely as property ; the 2d clause, 3d section 
of the 4th article, declax'cs " that Congress shall hare jjoiver to dispose of 
and make all needful rules and regulations respecting the territory or other 
l^roperty belonging to the United States; and nothing in this Constitution 
shall be so construed as to prejudice any- claims of the United States or of 
any particular State.''-' But this clause was rightfully adjudicated by 
the supreme judicial authority not to confer on Congress general jurisdic- 
tion over territories, but by its terms to restrain that jurisdiction to 
their management as property, and even without that adjudication, it 
would not be ditlicult to prove the utter disregard of all sound princi- 
ples of construction of this attempt to cx-jn?T:l (lijs simple duty "to dis- 
pose of and make all needful rules and regulations concerning the 
territory and other property of the United States'' into this gigantic 
assumption of unlimited power in all cases whatsoever over the territo- 
ries. AVhen the Constitution seeks to confer this power, it uses 
appropriate language ; when it wished to confer this power over the 
District of Columbia and the places to be acquired for forts, magazines, 
and arsenals, it gives Congress power "to exercise exclusive legislation 
in all cases whatsoever over them." This is explicit, it is apt language 
to express a particular purpose, and no ingenuity can construe the 
clause concerning the territories into the same meaning. 

This construction was so clear that Congress was then driven to look 
for power to govern its acquisitions in the necessity and propriety of U 
as a means of executing the express power to make treaties. The right 
to acquire territory under the treaty-making power, was itself an imp]\- 
cation, and an implication whose rightfulness was denied by Mr. Jelier- 
son, who exercised it ; the right to govern being claimed as an incident 
of the right to acquire, was then but an implication of an implication, 
and the power to exclude slavery therefrom, was still another remove 



TOOMBS' LECTURE IN BOSTON. 631 

Prom the fountain of all power— express grant. But wl:o.tlicr this power 
to prohibit slavery in the common territories be claimed from the one 
source or the other, it cannot be sustained upon any sound rule of 
constitutional construction. The power is not expressly granted. Then 
unless it can be shown to be both "necessary and proper" in order to 
the just execution of a granted power, the constitutional argument 
against it is complete. This remains to he shown by the advocates of 
this power. Admit the power in Congress to govern the territories until 
they shall be admitted as States into the Union— derive it either from 
the clause of the Constitution last referred to, or from the treaty-making 
power, this power to prohibit slavery is not an incident to it in either 
case, hecause it is neither " necessary nor proper" to its execution,— 
that it is not necessary to execute the treaty-making power, is shown 
from the fact that the treaty power not only was never used for this 
purpose, but can be wisely and well executed without it, and has been 
repeatedly used to inciease and protect, slavery. The acquisitions of 
Louisiana and Florida are examples of its use without the exercise of 
this pretended "necessary and proper" incident. Numerous treaties 
and conventions, with both savage and civilized nations, from the 
foundation of the Government, demanding and receiving indemnities for 
injuries to this species of property, are conclusive against this novel 
pretension. That it is not necessary to the execution of the powder " to 
make needful rules and regulations respecting the territory and other 
property of the United States," is proven from the fact that seven terri- 
tories have heen governed by Congress, and trained into sovereign 
States without its exercise. It is not proper, because it seeks to use an 
implied power for other and diflbient purposes from any specified, 
expressed, or intended by the grantors. The purpose is avowed to be. 
to limit, restrain, weaken, and finally crusa out slavery, whereas the 
grant expressly provides for strengthening and protecting it. It is not 
proper, because it violates the fundamental condition of the Union — the 
equality of the States. The States of the Union are all political 
equals — each State has the same right as every other State— no more, no 
less. The exercise of this prohibition violates this equality, and violates 
justice. By the laws of nations, acquisitions, either by purchase or 
conquest, even in despotic governments, enure to the benefit of all of the 
subjects of the State ; the reason given for this principle, by the most 
approved publicists, is, that they are the fruits of the common blood and 
treasure. This prohibition destroys this equality, excludes a part of the 
joint owners from an equal participation and enjoyment of the common 
domain, and against justice and right, appropriates it to the greater 
number. Therefore, so far from being a necessary and proper means 
of executing granted powers, it is an arbitrary and despotic usurpation, 
against the letter, the spirit, and the declared purposes of the Constitu- 
tion ; for its exercise neither "promotes a more perfect union, nor 



632 APPENDIX G. 

establishes justice, nor insures domestic tranquillity, nor provides for 
the common defence, nor promotes the general welfare, nor secures the 
blessings of liberty to ourselves or our posterity," but, on the contrai-y, 
puts in jeopardy all these inestimable blessings. It loosens the bonds 
of union, seeks to establish injustice, disturbs domestic tranquillity, 
weakens the common defence, and endangei's the general welfare by 
sowing hatreds and discords among our people, and puts in eminent 
peril the liberties of the white race, by whom and for whom the Consti- 
tution was made, in a vain effort to bring them down to an equality 
with the African or to raise the African to an equality with them. 
Providence has ordered it otherwise, and vain will be the efforts of man 
to resist this decree. This effort is as wicked as it is foolish and unau- 
thorized. It does not benefit, but injures the black race ; penning them 
up in the old States will necessarily make them more wretched and 
misera])le, but will not strike a fetter from their limbs. It is a simple 
wrong to the white race, but it is the refinement of cruelty to the blacks. 
Expansion is as necessary to the increased comforts of the slave as to 
the prosperity of the master. 

The constitutional construction of this point by the South works no 
wrong to any portion of the Republic, to no sound rules of construction, 
avid promotes the declared purposes of the Constitution. We simply 
propose that the common territories be left opeu. to the common enjoy- 
ment of all the people of the United States, that they shall be protected 
in their persons and property by the Federal Government until its au- 
thority is superseded by a State Constitution, and then we propose that 
the character of the domestic institutions of the new State be determined 
b}'^ the freemen thereof. This is justice — this is constitutional equality. 

But those who claim the power in behalf of Congress to exclude slavery 
from the common territories, rely rather on precedent and authority 
than upon principle to support the pretension. In utter disregard of 
the fiicts, they boIdl_y proclaim that Congi-ess has, from thebegiuning of 
the Government, uniformly asserted and repeatedly exercised this power. 
This assertion I will proceed to show is not supported by a single prece- 
dent up to 1820. Before that time the general duty to protect this great 
interest, equally with every other, both in the territories and elsewhere, 
was universally admitted and fairly performed by every Department of 
the Government. The act of 1793 was passed to secure the delivery up 
of fugitives from labor, escaping to the non-siaveholding States ; our 
navigation laws authorized their transportation on the high seas, the 
Government demanded and frequently received compensation for owners 
of slaves, for injuries sustained in these lawful voyages by the interference 
of foreign Governments. It not only protected this property on the high 
seas, but followed it to foreign lands where it had been driven by the 
dangers of the sea, and [)rotected it when cast even within the jurisdic- 
uoji of hostile laws It was protected against the invasions of Indiana 



TOOMBS' LECTURE IN BOSTON. 633 

by your military power and pulilic treaties. In your statute book are 
to be found numerous treaties from tlie beginning of the Government 
to this time, compelUng tlie Indian irilx's to pay for slave property cap- 
tured or destroyed by theui in peace or war, and your laws regulating 
intercourse with tlie Indian tribes on our borders made permanent pro- 
vision for its protection. The treaty of Ghent provides for compensatiou 
by the British Government for tlie loss of slaves, precisely upon the same 
footing as fur all (;ther property, and a New England man, (Mr. John 
Q. Adams) ably, faitlifully, and successfully, maintained tlie slaveholders' 
rights under it at the Court of St. .James. Until the year lR-20, our ter- 
ritorial legislation was marked by the same general spirit of fairness and 
equity. Up to that period, no act was passed by Congress asserting the 
primary constitutional power to prevent any citizen of the United States, 
owning slaves, from removing with them into our territories, and thei'e 
receiving legal protection for his property ; and until that time such per- 
sons did so remove into all the territories owned or acquired by the 
United States, (except the northwest territory,) and were there ade- 
(juately protected. This fiict alone is a complete refutation of the claim 
of early precedents. The action of Congress in reference to the ordi- 
nance of 1787, does not contravene my position. That ordinance was 
adopted on the 13th day of July, 17S7, before the adoption of the Con- 
stitution. It purported on its face to be a perpetual compact between 
the State of Virginia, the people of that territory, and the then Govern- 
ment of the United States. It was unalterable except by the consent of 
all the parties ; when Congress met for the first time under the new 
Gov nment on the 4tli day of March, 1789, it found the Government 
established by virtue of this ordinance in actual operation ; and on the 
7th of August, 1789, it passed an act making the otKcers of Governor 
and Secretary of the territory conform to the Federal Constitution. It 
did nothing more — it made no reference to, it took no action upon the 
Gtli and last section of the ordinance, which prohibited slavery. The 
division of that territory was provided for in the ordinance ; at each 
division, the whole of the ordinance was assigned to each of its parts. 
This is the whole sum and substance of the free-soil claim, to legislate 
precedents. Congress did not assert or exercise the right to alter a com- 
pact entered into with the former Government, (the old Confederation,) 
but gave its assent to the Government already established and provided 
for in the compact. If the original compact was void for want of power 
in the old Government to make it, as iSIr. Madison supposed, Congress- 
may not have been bound to accept it, it certainly had no pijwer to alter 
it. From these facts, it is clear, that this legislation for the northwest 
territory, docs not conllict with the principle I assert, and does not fur- 
nish a precedent for hostile legislation by Congress against slavery in 
the territories. That such was neither the principle nor tlie i)olicy upon 
which this act of Congress in 1789 was based, is further shown by the 



QS4: APPENDIX G. 

subsequent action of the same Congress upon the same subject. On tha 
2d of Aoril, 1790, Congress, by a formal act, accepted the session by 
North Carolina of her western lands, (now the State of Tennessee,) with 
this clause in the deed of session — "that no regulations made, or to be 
made by Congress, shall tend to emancipate slaves" in the ceded terri- 
tory, and on the '2Gth May, 179:), passed a territorial bill for the govern- 
ment of all the territory claimed by the United States south of the Ohio 
river. The description of this territory included all the lands ceded by 
North Carohna, and it included a great deal more. Its boundaries were 
left indefinite because there were conflicting claims to all the rest of the 
territory. But this act put the whole country south of the Ohio, claimed 
by the Federal Government, under this pro-slavery clause of the North 
Carolina deed. The whole action of the first Congress in relation to 
slavery in the territories was simpl}' this : it acquiesced in a government 
for the northwest territory, based upon a pre-existing anti-slaveiy ordi- 
nance, established a government for the country ceded by North Caro- 
lina in conformity with the pro-slavery clause in her deed of cession, and 
extended this pro-slavery clause to all the rest of the territory claimed 
by the United States. This legislation vindicates the first Congress 
from all imputation of having established the precedent claimed by the 
advocates of legislative exclusion. On the 7th of April, 1798, (during 
the administration of President John Adams,) the next territorial act 
was passed : it was the first act of territorial legislation resting solely 
upon primary, original, unfettered constitutional power over the sub- 
ject. It established a government over the territory included within 
the boundaries of a line drawn due east from the mouth of the Yazoo 
river to the Chatahoochee river, thence down that river to the thirty- 
first degree of north latitude, thence west on that line to the Mississippi, 
then up that river to the beginning. This territory was within the 
boundary of the United States, as defined by the treaty of Paris, and 
was held not to be within the boundary of any of the States. The con- 
troversy arose out of this state of facts. The charter of Georgia limited 
her boundary in the South by the Altamaha river. In 1763 (after the 
surrender of her charter), her limits were extended on the south by tho 
Crown of Great Britain, to the St. Mary's river, and thence on the 
thirty-first parallel of latitude to the Mississippi river. In 1704, it was 
claimed, that on the recommendation of the Board of Trade, the boun- 
dary was again, altered, and that portion of territory lying within the 
boundaries I have described, was annexed to West Florida, and that 
thus it stood at the Eevolution and the treaty of peace. Therefore the 
United States claimed it as common property, and in 1798, passed the 
act now under review for its government. In that act, Congress neither 
claimed or exercised any power to prohibit slavery. The question came 
directly before it. The ordinance of 1787, in terms, excluding the anti- 
slavery clause, was applied to this territory : this is a precedent directlj 



TOOMBS' LECTURE IN BOSTON. 6o5 

in point, and is directly against tlie exercise cf the power n( w claimed. 
In 1802, Georgia ceded her westerii lands, protecting slavery ia her 
grant, and the Federal Government observed the stipulation. In 1803, 
we acquired Louisiana from France by purchase. There is no special 
reference to slavery in the treaty ; it was protected only under the gene- 
ral name of property. This acquisition was, soon after the treaty, 
divided into two territories, the Orleans and Louisiana territories, over 
both of which governments were established. Slavery was protected by 
law in the whole territory when we acquired it. Congress prohibited 
the foreign and domestic slave trade in these territories, but gave the 
express protection of its laws to slave owners emigrating thither with 
their slaves. Upon the admission of Louisiana into the Union, a new 
government was established over the rest of the country, under the name 
of the Missouri Territory. This act attempted no exclusion ; slave- 
holders emigrated to the country with their slaves, and were protected 
by their Government. In 1819, Florida was acquired by purchase ; its 
laws recognized and protected slavery at the time of the acquisition. 
The United States extended the same recognition and protection to it. 
In all this legislation, embracing every act upon the subject up to 1820, 
we find no warrant, authority, or precedent, for the prohibition of sla- 
very by Congress in the territories. 

When Missouri applied for admission into the Union, an attempt was 
then made, for the first time, to impose restrictions upon a sovereign 
State, and admit her into the Unici upon an unequal footing with her 
sister States, and to compel her to mould her Constitution, not according 
to the will of her own people, but according to the fancy of a majority 
in Congress. The attempt was sternly resisted, and resulted in an act 
providing for her admission, but containing a clause prohibiting slavery 
.forever in all the territory acquired from France, outside of Missouri, 
and north 36° 30' north latitude. The principle of this law was a 
division of the common territory. The authority to prohibit even to 
this extent was denied by Mr. Madison, Mr. Jefferson, and other leading 
men of that day. It was carried by most of the southern representatives 
combined with a small nuinoer of northern votes. It was a departure 
from principle, but it savored of justice. Subsequently, upon the settle- 
ment of our claim to Oregon, it lying north of that line, the prohibition 
was applied. Upon the acquisition of Texas, the same line of division 
was adopted. But when we acquired California and New Mexico, the 
South, still willing to abide by the principle of division, again attempted 
to divide by the same line. It was almost unanimously resisted by the 
Northern States ; their representatives, by a great majority, insisted upon 
absolute prohibition and the total exclusion of the people of the Southern 
States from the wliole of the common territories unless they divested 
themselves of their slave property. The result of a long and unhajijiy 
conflict was the legislation of 1850. By it a large body of the ri.'preseuta 



g36 APPENPIX G. 

lives of the non-slavehol cling States, fustaincd by the approbation of 
tlu'ir constituents, acting upon sound principles of constitutional con- 
struction, duty and patriotism, aided in voting down this new and dan- 
irerous usurpation, declared for the equality of the States, and protected 
tlie people of the territories from this unwarrantable interference with 
tUinr rights. Here we wisely abandoned " the shifting grounds of com- 
promise," and put the rights of the people again "upon the rock of the 
Constitution." The law of 1854 (commonly known as the Kansas- 
Nebraska act) was made to conform to this policy, and Ijut carried out 
the principles established in 1850. It righted an ancient wrong, and 
will restoi-e harmony because it restores justice to the country. This 
legislation I have endeavored to show is just, fair, and equal ; that it is 
sustained by principle, by authority, and by the practice of our fathers. 
I trust, I believe, that when the transient passions of the day shall have 
suV)sided, and reason shall have resumed her dominion, it will be 
approved, even ai^plauded, by the collective body of the people, in every 
portion of our widely extended Republic. 

In inviting 3'our calm consideration of the second point in my lecture, 
I am fully persuaded that even if I should succeed in convincing your 
reason and judgment of its truth, I shall have no aid from your sympa- 
thies in this work ; yet, if the principles upon which our social system 
is founded are sound, the system itself is humane and just as well as 
necessary. Its permanence is based upon the idea of the superiority by 
nature of the white race over thu xVfrican ; that this superiority is not 
transient and artificial, but permanent and natural ; that tlie same 
power which made his skin unchangeably black, made him inferior, in- 
tellectually, to the white race, and incapable of an equal struggle with 
him in the career of progress and civilization ; that it is necessary for 
his preservation in this struggle, and for his own interest as well as that 
of the society of which he is a member, that he should be a servant and 
ntit a freeman in the commonwealth. 

I have already stated that African slavery existed in all of the colo- 
nies at the commencement of the American Revolution. The paramount 
authority of the Crown, with or without the consent of the colonies, had 
: itroduced it, and it was inextricably interwoven with the frame-work 
of society, especially in the Southern States. The question was not 
presented for our decision whether it was just or beneficial to the Afri- 
can, to tear him away liy force or fraud from bondage in his own coun- 
try and place him in a like condition in ours. England and the Chris- 
tian world had long before settled that question for us. At the final 
CTcrthrow of British authority in these States our ancestors found seven 
hundred thousand Africans among them, already in bondage, and con- 
centrated, from our climate and productions, chieily in the present slave- 
holding States. It became their duty to establish governments for 
themselves and these people ; and they brought wisdom, experience, 



TOOMBS' LECTURE IN BOSTON. 637 

leatiung, and patriotism to the great worlc. They sought that system 
of government wliich would secure the greatest and most enduring \m\)- 
piness to the whole society. They incorporated no Utopian theories 
into their system. They did not so much concern themselves about 
what rights man might possibly have in a state of nature, as what riglts 
he ought to have in a state of society ; they dealt with political rights 
as things of compact, not of birthright, in the concrete and not in the 
abstract. They held, and maintained, and incorporated into their sys- 
tem as fundamental truths, that it was the right and duty of the State 
to define and fix, as well as to protect and defend the individual rights 
of each member of the social compact, and to treat all individual rights 
as subordinate to the great interests of the whole society. Therefore, 
they denied "natural equality," repudiated mere governments of mua 
necessarily resulting therefrom, and established governments of laws, — 
thirteen free, sovereign, and independent Republics. A very slight 
examination of our State Constitutions will show how little they re- 
garded vague notions of abstract liberty, or natural equality in fixing 
the rights of the white race as well as the black. The elective franchise, 
the cardinal feature of our system, I have already shown, was granted, 
withheld, or limited, according to their ideas of public policy and the 
interest of the State. Numerous restraints upon the supposed abstract 
right of a mere numerical majority to govern society in all cases, are to 
be found planted in all of our Constitutions, State and Federal, thus 
affirming this subordination of individual rights to the interest and 
safety to the State. 

The slaveholding States, acting upon these principles, finding the 
African race among them in slavery, unfit to be trusted with political 
power, incapable as freemen of securing their own happiness, or jiro- 
nioting the public prosperity, recognized their condition as slaves, and 
sul)|ected it to legal control. There are abundant means of obtaining 
evidence of the effects of this policy on the slave and society, accessible 
to all who seek the truth. We say its wisdom is vindicated by its re- 
sults, and that, under it, the African in the slaveholding States is found 
in a better position than he has ever attained in any other age or coun- 
try, whether in bondage or freedom. In support of this point, I pro- 
pose to trace him rapidly from h.is earliest history to the present time. 
The monuments of the ancient Egyptians carry him back to the morn- 
ing of time — older tlian the pyramids — they furnish the evidence, bntli 
of his national identity and his social degradation before history liegan. 
We first behold him a slave in foreign lands ; we then find the great 
body of his race slaves in their native land ; and after thirty centuries, 
illuminated by both ancient and modern civilization, have passed over 
him, we still find him a slave of savage masters, as incapable as liimself 
of even attemi)ting a single stej) in civilization — we lind him there still, 
without government or laws of protection, without leltej-s or arts of in- 



638 APPENDIX G. 

dustiy, without religion, or even the aspirations which would raise him 
to the rank of an idolater, and in his lowest type, his almost only mark 
of humanity is, that he walks erect in the image of the Creator. Anni- 
hilate his race to-day, and you will find no trace of his existence within 
half a score of years ; and he would not leave behind him a single dis- 
covery, invention, or thought worthy of remembrance by the human 
(kmily. 

In the Eastern Hemisphere he has been found in all ages, scattered 
among the nations of every degree of civilization, yet inferior to them 
all, always in a servile condition. Very soon after the discovery and 
feettlement of America, the policy of the Christian world bought large 
numbers of these people of their savage masters and countrymen and 
imported them into the Western world. Here we are enabled to view 
them under dill'erent and far more favorable conditions. In Ilayti, by 
the encouragement of the French Government, after a long probation of 
slavery, they became free, and led on by the conduct and valor of the 
mixed races, and by the aid of overwhelming numbers, they massacred 
the small number of whites who inhabited the island, and succeeded to 
the undisputed sway of the fairest and best of all the West India Islands 
under the highest state of cultivation. Their condition in llayti left 
nothing to be desired, for the most favorable experiment of the race in 
self-government and civilization. This experiment has now been tested 
for sixty years, and its results are before the world. Fanaticism may 
palliate, but cannot conceal the utter prostration of the race. A war 
of races began the very moment the fear of foreign subjugation ceased, 
and resulted in the extermination of the greater number of the mulat- 
toes, who had rescued the African from the dominion of the white race. 
Revolutions, tumults, and disorders, have been the ordinary pastime of 
the emancipated blacks ; industry has almost ceased, and their stock of 
civilization acquired in slavery has been already nearly exliausted, and 
they are now scarcely distinguished from the tribes from which they 
were torn in their native land. 

More recently the same experiment has been tried in Jamaica, under 
the auspices of England. This was one of the most beautiful, product- 
ive, and prosperous of the British colonial possessions. In 18:38, Eng- 
land, following the folse theories of her own abolilionists, proclaimed 
total emancipation of the black race in Jamaica. Her arms and her 
power have watched over and protected them ; not only the interest, 
but the absolute necessities of the white proprietors of the land com- 
pelled them to offer every inducement and stimulant to industry ; yet 
the experiTnent stands before the world a confessed failure. Ruin lias 
overwhehued the proprietors ; and the negro, true to the instincts of liia 
nature, buries himself in filth, and sloth, and crime. Here we can 
compare the African Avith himself in both conditions, in freedom and in 
nondage ; and we can comiiare him with his race in the same climate 



TOOMBS' LECTURE IN BOSTON. 639 

and following the same pursuits. Compare him with himself under the 
two different conditions in Hayti and Jamaica, or with his race in 
bondage in Cuba, and every comparison demonstrates the folly of hia 
emancipation. In the United States, too, we have peculiar opportuni- 
ties of studying the African race under different conditions. Here we 
find him in slavery ; here we find him also a free man in both the slave- 
holding and non-slaveholding States. The best specimen of the free 
black is to be found in the Southern States, in the closest contact with 
slavery, and subject to many of its restraints. Upon the theory of the 
anti-slavery men, the most favorable condition in which you can view 
the African ought to be in the non-slaveholding States of this Union. 
There we ought to expect to find him displaying all the capabilities ot 
his race for improvement and progress— in a temperate climate, with 
the road of progress open before him, among an active, industrious, in- 
genious, and educated people, surrounded by sympathizing friends, and 
mild, just, and equal institutions, if he fails here, surely it can be charge- 
able to nothing but himself. He has had seventy years in which to 
cleanse himself and his race from the leprosy of slavery, yet what is his 
condition here to-day ? He is free : ho is lord of himself; but he finds 
it is truly a "heritage of woe." After this seventy years of education 
and probation, among themselves, his inferiority stands as fully a con- 
fessed ftxct in the non-slaveholdhig as in the slaveholding States. By 
tliem he is adjudged unfit to enjoy the rights and i)erforui the duties of 
citizenship— denied social equality by an irreversible law of nature and 
political rights, by municipal law, incapable of maintaining the unequal 
f truc;gle with the superior race ; the melancholy history of his career of 
freedom is here most usually found in the records of criminal courts, 
jails, poor-houses, and penitentiaries. These facts have had themselves 
recognized in the most decisive manner throughout the Northern States. 
No town, or city, or State, encourages their immigration ; mai.y of them 
discourage it by legislation ; some of the non-slaveholding States have 
prohibited their entry into their borders under any circumstances what- 
ever. Thus, it seems, this great fact of "inferiority" of the race is 
equally admitted everywhere in our country. The Northern States ad- 
mit it, and to rid themselves of the burden, inflict the most cruel inju- 
ries upon an unhappy race ; they expel them from their borders and 
drive them out of their boundaries, as wanderers and outcasts. The 
result of this policy is everywhere apparent ; the statistics of population 
sui)ply the evidence of their condition. In the non-slaveholding States 
t'heir annual increase, during the ten years preceding the last census, 
was but a little over one per cent, per annum, even with the additions 
of the emancipated slaves and fugitives from labor from the South, 
clearly proving that in this, their most favored condition, when left to 
thouiselves, they are scarcely capable of maintaining their existence. 



640 APPENDIX a 

and witli tho prospect of ii denser population and a greater competition 
for employment consequent thereou, they are in danger of extinction. 

The Southern States, acting upon the same admitted facts, treat tliera 
dinireutly. They keep them in the subordinate condition in which they 
found them, protect them against themselves, and compel them to con- 
tribute to their own and the public interest and wclfai'e ; and under thia 
system, we appeal to facts, ojjcn to all men, to prove that the African 
race has attained a higher degree of comfort and happiness than his 
race has ever before attained in any other age or country. Our political 
system gives the slave great and valuable rights. His life is equally pro- 
tected with that of his master: his person is secure from assault against 
all others excei)t his master, and his master's power in this respect is 
placed under salutary legal restraints. He is entitled, by law, to a home, 
to ample food and clothing, and exempted from "excessive" labor ; and 
when no longer capable of labor, in old age and disease, he is a legal 
charge upon his master. Ilis family, old and 3'oung, whether capable 
of labor or not, from the cradle to the grave, have the same legal rigli's ; 
and in these legal provisitms, they en joy as large a projiorliou of the pro- 
ducts of their labor as any class of unskilled hired laljorers in the world. 
"We know that these rights are, in the main, faithfully secured to them \ 
but I rely not on our knowledge, but submit our institutions to tho 
same tests by which we try those of all other countries. These are sup- 
plied by our public statistics. They show that our slaves are larger 
consumers of animal food than any population in Europe, and larger 
than any other laboring population in the United States ; and that thrir 
natural increase is equal to that of any other people ; these are true and 
undisputable tests that their physical comforts are amply secured. 

In 1790 there were less than seven hundred thousand slaves in tbo 
United States : in 18.")0 the number exceeded three and one quarter 
millions. The same authority shows their increase, for the ten 
years preceding the last census, to have been above twenty-eight per 
cent., or nearly three per cent, per annum, an increase equal, allowing 
for the element of foreign immigration, to the white race, and nearly 
three times that of the free blacks of the North. But these legal rights 
of the slave embi-ace but a small portion of the privileges actually en- 
joyed by him. lie has, by universal custom, the control of much of his 
own time, which is applied, at his own choice and convenience, to the 
mechanic arts, to agriculture, or to some other pnjfitable pursuit, which 
not only gives him the power of purchase over many additional necessa- 
ries of life, but over many of its luxuries, and, in numerous cases, enable^ 
him to purchase his freedom when l\e desires it. Besides, the nature ot 
the relation of master and slave begets kindnesses, imposes duties, (and 
secures their performance,) which exist in no other relation of capital 
and labor. Interest and humanity co-operate in harmony for the wcU- 
oeing of slave labor. Thus the ui'iuster oltjcclion to our iiistiluiicu of 



TOOMBS' LECTURE IN BOSTON. 641 

slavery, that it deprives labor of its wages, cannot stand the test of a 
truthful investigation. A slight examination of the true theoi'y of 
wages, will further expose its fallacy. Under a system of free labor, 
wages are usually paid in money, the representative of products — under 
ours, in products themselves. One of your most distinguished states- 
men and patriots, President John Adams, said that the difference to the 
State was "imaginary." "What matters it (said he) whether a land- 
lord emplojing ten laborers on his farm, gives them anuuany as much 
money as will buy them the necessaries of life, or gives them those 
necessaries at short hand. " All experience has shown that if that be 
the measure of the Avages of labor, it is safer for the laborer to take his 
wages in products than in their fluctuating pecuniary value. There- 
fore, if we pay in the necessaries and comforts of life more than any 
given amount of pecuniary wages will buy, then our laborer is paid 
higher than the laborer who receives that amount of wages. The most; 
authentic agricultural statistics of England show that the wages of 
agricultural and unskilled labor in that kingdom, not only Ml to furnish 
the laborer with the comforts of our slave, but even with the necessaries 
of life, and no slaveholder could escape a conviction for cruelty to his 
slaves who gave his slave no moi-e of the necessaries of life for his labor 
than the wages paid to their agricultural laborers by the noblemen and 
gentlemen of Englaud would buy. Under their system man has become less 
valuable and less cared for than domestic animals, and noble Dukes will 
depopulate whole districts of men to supply their places with sheep, and 
then, with intrepid audacity, lecture and denounce American .slaveholders. 

The great conflict between labor and capital, under free competition, 
has ever been how the earnings of labor shall be divided between them. 
In new and sparsely settled countries, where land is cheap, and food is 
easily produced, and education and intelligence approximate equality, 
labor can successfully struggle in this warfare with cai)ital. But this ia 
an exceptional and temporary condition of society. In the Old 'World 
this state of things has long since passed avv^ay, and the conflict with the 
lower grades of labor has long since ceased. There the compensation of 
unskilled labor which first succumbs to capital, is reduced to a point, 
scarcely adequate to the continuance of the race. The rate of increase 
is scarcely one per cent, per annum, and even at that rate, population, 
until recently, was considered a curse ; in short, capital has become the 
master of labor with all the benefits, without the natural burdens of the 
relation. 

In this division of the earnings of labor between it and capital, the 
southern slave has a marked advantage over the English laborer, and is 
often equal to the free laborer of the North. Here again we are 
furnished with authentic data from whijh to reason. The census ot 
1850 shows that, on cotton estates of the South, which is the chief 
branch of our agricultural industry, one half of the arable lands are 
41 



Q4:2 APPENDIX G 

annually put under food crops. This half is usually wholly consumed 
on the farm hy the laborers and necessary animals ; out of the other 
half must be paid all the necessary expenses of production, often in- 
cluding additional supplies of food Iwyond the produce of the land, whicU 
usually Qi\ua\s one third of the residue, leaving but one third for not rent. 
The average rent of the land in the older non-slaveholding Statics, is 
equal to one third of the gross product, and it not unfroquently amounts 
to one hiiLx of it, (in England it is sometimes even greater,) the tenant, 
from his portion, paying all expenses of production, and the expenses 
of himself and family. From this statement it is apparent that the farm 
laborers of the South receive always as much, and frequently a greater 
jiortion of the produce of tlie laud, than the laborer in the New or Old 
Englaud. Besides, here the portion due the slave, is a charge upon the 
whole product of capital, and the capital itself; it is neither dependent 
upon seasons nor subjects to accidents, and survives his own capacity 
for labor, and even the ruin of his master. 

But it is ol>jecteil that religious instruction is denied the slave. While 
it is true that religious instruction and privili'gcs are not enjoined by 
law in all of the States, the number of slaves who are in connection 
with the diflerent churches abundantly proves the universality of their 
enjoyment of those privileges. And a much larger number of the race 
in slavery enjoy the consolation of religion than the eflbrts of the 
combined Christian world have been able to convert to Cliristiauity 
out of all the millions of their countrymen who remained in their native 
land 

The immoralities of the slaves, and of those connected with slavery, 
art constant themes of abolition denunciation. They are lamentably 
great ; but it remains to be shown that they are greater than with the 
laboring poor of England, or any other country. And it is shown that 
our slaves are without the additional stimulant of want to drive them to 
crime, we have at least rem»n-ed from them the temptation and excuse 
of hunger. Poor human nature is here at lea.st spared the wretched fate 
of the utter prostration of its moral nature at the feet of its physical 
wants. Lord Ashley's report to the 15rilish Parliament, shows tliat in the 
capital of that empire, perhaps williin hearing of Stafford House and 
Exeter Hall, hunger alone daily drives tliousand of men and women into 
the abyss of crime. 

It is also objected that our slaves are debarred the benefits of education. 
This obji'ction is also well taken, and is not without force. And for 
this evil the slaves are greatly indebted to the abolitionists— formerly 
In none of the slaveholding States, was it forbidden to teach slaves to 
read and write, but the character of the literature sought to be furnished 
them by the abolitionists caused these States to take counsel rather of 
their passions than their reason, and to lay the axe at the root of the 
evil • bitter counsels will in time prevail, and this will be remedied. It 



TOOMBS' LECTURE IN BOSTON. 643 

is true that the slave, from his protected position, has lesa need of 
education than the free laborer who has to struggle for himself in the 
welfare of society ; yet, it is both useful to him, his master, and society. 

Tlie want of legal protection to the marriage relation is also a fruitful 
source of agitation among the opponents of slavery. The complaint is 
not without foundation ; this is an evil not yet removed by law, but 
marriage is not inconsistent with the institution of slavery as it exists 
among us, and the objection, therefore, lies rather to an incident than 
the essence of the system. But, in the truth and fact, marriage does 
exist to a very great extent among slaves, and is encouraged and pro- 
tected by their owners ; and it will be found, upon careful investigation, 
that fewer children are born out of wedlock among slaves, than in the 
capitals of two of the most civilized countries of Europe — Austria and 
France : in the former, one half of the children are thus born — in the 
latter, more than one fourth. But even in this we have deprived the 
slave of no pre-existing right. We found the race without any know- 
ledge of or regard for the institution of marriage, and we are reproached 
with not having as yet secured to it that, with all other blessings of 
civilization. To protect that and other domestic tics by laws forbidding, 
under proper regulations, the separation of I'amilies, would be wise, proper, 
and humane, and some of the slaveholding States have already adopted 
partial legislation for the removal of these evils. But the objection is 
far more formidable in theory than in practice. The accidents and 
necessities of fife, the desire to better one's condition, produce infinitely 
a greater amount of separation in families of the white than ever happ(!n 
to the colored race. This is true, even in the United States, where the 
general condition of the jieople is prosperous. But it is still more 
marked in Europe. The injustice and despotism of England towards 
Ireland has produced more separation of Irish families, and sundered 
more domestic ties within the last ten years than Ai'rican slavery has 
effected since its introduction into the United States. The twenty 
millions of freemen in the United States are witnesses of the dispersive 
injustice of the old world. The general happiness, cheerfulness, and 
contentment of slaves, attest both the mildness and humanity of the 
system and their natural adaptation to their condition. They require 
no standing armies to enforce their obedience : while the evidence of dis- 
content and the a]-»pliance of force to repress it, are every where visible 
among the toiling millions of the earth ; even in the northern States of 
this Union, strikes and mobs, unions and combinations against employers, 
attest at once the misery and discontent of labor among them. England 
keeps one hundred thousand soldiers fn time of peace, a large navy, and 
an innumerable police, to secure obedience to her social institutions ; 
and physical force is the sole guarantee of her social order, the only 
cement of her gigantic empire. 

I have briefly traced the condition of the African race thropgli all 



64t4 APPENDIX G. 

ages and all countries, and described it fairly and truly under American 
slavery, and I submit that the proposition is fully proven, that his 
position in slavery among us is superior to any which he has ever attained 
in any age or country. The picture is not without shade as well as 
lighl ; evils and imperfections cling to man and all of his works, and 
this is not exempt from them. The condition of the slave offers great 
opportunities for abuse, and these opportunities are frequently used to 
violate humanity and justice. But the laws restrain these abuses, and 
punish these ci-imos in this as well as other relations of life, and they 
who assume it as a fundamental principle in the constitution of man, 
that abuse is the unvarying concomitant of power, and crime of oppor- 
tunity, subvert the foundations of all private morals, and of every social 
system. Nowhere do these assumptions fmd a nobler refutation than 
in the general treatment of the Afr^an race by southern slaveholders : 
and we may, with hope and confidence, safely leave to them the removal 
of existing abuses, and the adoption of such further ameliorations as 
may be demanded by justice and humanity. The condition of the 
African, (whatever may be his interests,) may not be permanent among 
lis ; he may find his exodus in the unvarying laws of population. Under 
the conditions of labor in England and the Continent of Europe 
domestic slavery is impossible there, and could not exist here, or any- 
whei-e else. The moment wages descend to a point, ba.ely sufllcient to 
support the laborer and his family, capital cannot aflbrd to own labor 
and it must cease. Slavery ceased in England in obedience to this law, 
and not from any regard to liberty or humanity. The increase of 
population in this country may produce the same results, and American 
slavery, like that of England, may find its euthanasia in the general 
prostration of all labor. 

The next aspect in which I propose to examine this question is, its 
effects upon the material interests of the slaveholding States. Thirty 
years ago slavery was assailed, mainly on the ground that it was a dear, 
wasteful, unprofitable labor, and we were urged to emancipate the 
blacks, in order to make them more useful and productive members of 
society. The result of the experiment in the West India Islands, to 
which I have before referred, not only disproved, but utterly annihilated 
this theory. The theory was true as to the white race, and was not 
true as to the black, and this single fact made thoughtful men pause 
and ponder, before advancing further with this folly of al)olition. An 
inquiry into the wealth and productions of the slaveholding States of 
this Union demonstrates that slave labor can be economically and 
profitably employed, at least in agriculture, and leaves the question in 
great doubt, whether it cannot be thus employed in the South more 
advantageously than any other description of labor. The same truth 
will be made manifest by a comparison of the production of Cuba and 
Brazil, not only with Ilayti and Jamaica, but with the free races, in 



TOOMBS' LECTUEE. IX BOSTON. 645 

similar latitudes, engaged in tlie same or similar liroduclions in any part 
of the world. The slaveholding States, with one half of the white 
population, and between three and four millions of slaves, furnish above 
three fifths of the annual exports of the Republic, containing twenty- 
three millions of people; and their entire products, including everv 
branch of industry, greatly exceed j^er capita those of the more poi)ulou9 
Northern States. The difi'ercnce in realized wealth in proportion to 
population is not less remarkable and equally favorable to the slave- 
holding States. But this is not a fair comparison, on the contrary it is 
exceedingly uufiiir to the slaveholding States. The question of material 
advantage would be settled on the side of slavery, whenever it was 
shown that our mixed society was more productive and prosperous than 
any other mixed society with the inferior race free instead of slave. 
The question is not whether we could not be more prosperous and 
happy with these three and a half millions of slaves in Africa, and their 
places filled with an equal number of hardy intelligent enterprising 
citizens of the superior race, but it is simply whether while we have 
them among us, we would be most prosperous v/ith them in freedom or 
bondage ; with this bare statement of the true issue, I can safely leave 
the question to the facts already liOTetofore referred to, and to those 
disclosed in the late census. But the truth itself needs some explana- 
tion, as it seems to be a great mystery to the opponents of slavery, how 
the system is capable at the same time of increasing the comforts and 
happiness of the slave, the profits of the master, and do no violence to 
humanity. Its solution rests upon very obvious principles* In this 
relation, the labor of the country is united with, and protected by its 
capital, directed by the educated and intelligent, secured against its own 
weakness, waste, and folly, associated in such form as to give the 
greatest efficiency in production, and the least cost of maintainauce. 
Each individual free black laborer is the victim not only of his own 
folly and extravagance, but of his ignorance, misfortunes, and necessities. 
His isolation enlarges his expenses, without increasing his comforts ; 
his want of capital increases the price of every thing he buys, disables 
him from supplying his wants at favorable times, or on advantageous 
terms, and throws him in the hands of retailers and extortioners. But 
labor united with capital, directed by skill, forecast and intelligence, 
while it is capal)le of its highest production, is freed from all these 
evils, leaves a margin, both for the increased comforts to the laborer, 
and additional profits to capital. This is the explanation of the seeming 
paradox. 

The opponents of slavery, passing by the question of material inte- 
rests, insist that its effects on the society where it exists is to demoralize 
and enervate it, and render it incapable of advancement and a high 
civilization • and upon th-^ citizen to debase him morally and intellectu- 



Q4:Q APPENDIX G. 

ally. Such is not the lessou taught by history, either sacred oi ptufane, 
nor the experience of the past or present. 

To the Hebrew race were couimitted the oracles of the Most High ; 
slaveholding priests ad'niuistered at his altar, and slaveholding prophets 
and patriarchs received his revelations, and taught them to their own, 
and transmitted them to all future generations of men. The highest 
forms of ancient civilization, and the noblest development of the indi- 
vidual man, are to be found in the ancient slaveholding commonwealtfis 
of Greece and Kome. In eloquence, in rhetoric, in poetry and painting, 
in architecture and sculpture, you must still go and search amid the 
wreck and ruins of their genius for the '■'■ pride of every model and the 
perfection of every master," and the language and literature oi both, 
stamped with immortality, passes on to mingle itself with the thought 
and the speech of all lauds and all centuries. Time will not allow me 
to multi])ly illustrations. That domestic slavery neither enfeebles or 
deteriorates our race ; that it is not inconsistent with the highest ad- 
vaucemeut of man and society, is the lesson taught by all ancient and 
confirmed by all modern history. Its elfects in strengthening the 
attachment of the dominant race to liberty, was eloquently expressed 
by Mr. Burke, the most accomplished and philosophical statesman 
England ever produced. In his speech on conciliation with America, 
he uses the following strong language: "Where this is the case those 
who are free are by far the most proud and jealous of their freedom. I 
cannot alter the nature of man. The fact is so, and these people of the 
southern colonies are much more strongly, and with a higher and more 
stubborn spirit attached to liberty than those to the northward. Such 
were all the ancient commonwealths, such were our Gothic ancestors, 
and such in our day were the Poles ; such will be all masters of slaves 
who are not slaves themselves. In such a people the haughtiness of 
domination combines itself with the spirit of freedom, fortifies it, and 
renders it invincible." 

No stronger evidence of what progress society may make with do- 
mestic slavery can be desired, than that which the present condition of 
the slavc'Jiolding States presents. For near twenty years, foreign and 
domestic enemies of their institutions have labored by pen and speech to 
excite discontt-nt among the white race, and insurrections among the 
black ; these etlbrts have shaken the National Government to its foun- 
dations, and burst the bonds of Christian unity among the churches 
of the land ; yet the objects of their attacks — these States — have scarcely 
felt the shock. In surveying the whole civilized world, the eye rests 
not on a single spot where all classes of society are so well content with 
their social system, or have greater reason to be so, than in the slave- 
holding States of this Union. Stability, progress, order, peace, content, 
prosperity, reign throughout our borders. Not a single soldier is to be 
found in our widely-extended domain to overawe or protect society. 



TOOMBS' LECTURE IN BOSTON. 647 

The desire for organic change nowhere manifests ilsclf. Within less 
than seventy years, out of five feeble colonies, with less than one and <a 
half millions of inhabitants, have emerged fourteen Eepublican States, 
containing nearly ten millions of inhabitants, rich, powerful, educated, 
moral, relined, prosperous, and happy ; each with Republican Govern- 
ments adequate to the protection of public liberty and private rights, 
which are cheerfully obeyed, supported, and upheld by all classes of 
society. With a noble system of internal improvements penetrating 
almost every neighborhood, stimulating and rewarding the industry of 
our people ; with moral and intellectual surpassing physical improve- 
ments ; with churches, schoolhouses, and colleges daily multiplying 
throughout the land, bringing education and religious instruction to the 
homes of all the people, they may safely challenge the admiration of the. 
civihzed world. None of this great improvement and progress have 
been even aided by the Federal Government ; we have neither sought 
from it protection for our private pursuits, nor. appropriations for our 
public improvements. They have been eifected by the unaided indi- 
vidual eflbrts of an enlightened, moral, energetic, and religious people. 
Such is our social system, and such our condition under it. Its political 
wisdom is vindicated in its etTects on society ; its morality by the prac- 
tices of the patriarchs and the teachings of the apostles ; we submit it 
to the judgment of mankind, with the tirm conviction that the adoption 
of no other system under our circumstances would have exhibited the 
individual man, bond or free, in a higher development, or society in a 
hanpier civilization. 



GENERAL INDEX. 



VOL. I. 



A. 

ADAMS, JOHN. 441. 
ADAMS, JOHN QUINCY, 444. 

on the strength of the Union, 527. 
ADAMS, SAMUEL, 236, 243. 
ALIEN AND SEDITION LAWS, 468, 576. 
ALLEGIANCE, 24. 

and obedience, 25. 

due to the States under the first 

Confederation, 70. 
decision of Supreme Court on, and 

citizenship, 76. 
due to the States under the Constitu- 
tion, 492. 
AMES, FISHER, 236, 238. 

maintained that the States remained 
sovereign, .and the Senators were 
Ambassadors from the States, 239, 
244. 
ANNAPOLIS, 

meeting of Commissioners at, 1786,91. 
report of Cotmuissioners, 91. 
ARTICLES OF FIRST CONFEDERA- 
TION, 549. 
these were the first Constitution, 51. 
formed by Sovereign States, 69. 
instructions by States to Delegates 

for forming, 69. 
Justice Chase, of Supreme Court, on 

sovereignty during, 78. 
acompact between Sovereigns, 80, 81 . 
analysis of, 84. 
defects of, two, 87. 
action of Congress on defects of, 88. 
call for a Convention, 89. 
responses of the States to the call, 
98, et seq. 

E. 

BALTIMORE, 

general mass ratification of Consti- 
tution at, 165. 
BANCROFT, GEORGE, 

attributes to JefTerson the idea of the 
great corajiromise of the Constitu- 
tion, 135, note. 
BANK OF AUGUSTA vs. EARLE, 389. 
(648) 



BEDFORD , GUNNING, 

in Federal Convention, 130. 

speech aa;ainst departing from tka 
Federal' basis, 130. 
BIBB, GEORGE M., 

on th-e Sovereignty of the States, 425. 

on the judicial power, 451. 
BOSTON, 

port bill, the cause of the first Con- 
gress, 56. 

general mass ratification of the Con- 
stitution, 165. 
BOTTS. JOHN M., 23. 
BOWDOIN. .JAMES, 236. 
BROOM'S MAXIMS, 21, 83, 501. 
BUCHANAN, JAMES, 445, 514. 
BURLAMAQUI. 

on supreme la)V, 48. 

cited by Mr. Calhoun, 351, 365. 

sovereignty remains with the States 
in a Federal Republic, 487. 

C. 

CABOT, GEORGE, 512. 
CALHOUN, JOHN C, 
on citizenship, 38. 
resolutions by, in 1833, on State 

rights, 299. 
his character, 340. 

his reply to Mr. Webster in support 
of his resolutions maintainiiig that 
the Constitution is a compact be- 
tween St;ites, 343. 
this speech never answered, 387. 
resolutions by, in U. S. Senate, De- 
cember, 1837, giving an exposition 
of the nature of the government, 
399. 

vote by States upon these, 402. 
debate with Mr. Wilkins on nullifi- 
cation, 423. 
speech on Clay's compromise of tho 
tariff, 438. 
CASS, LEWIS, 11. 

CHASE, SAMUEL (.Justice Sup. Court), 
on supreme law, 47. 
on State Sovereignty, 78. 



INDEX. 



649 



CHASE, S A:\irEL (cnnHimed), 

on the Deehiration ©f Independence, 
80. 
CICERO, 13, 33, 204, 205. 
CITIZENSHIP, 34. 
Rawle on, 35. 

Curtis (Justice Sup. Court) on, 36. 
Calhoun on, 38. 
Su])renie Court on, 76. 
CLAY, HENRY, 11. 

his compromise of 1833, 431. 
his speech on compromise, 432. 
his character, 438. 
his vote on Calhoun's resolutions in 
1 838, 402. 
COLONIES, THE THIRTEEN, 54. 
first union of, 55. 
first union of to defend the rights of 

Massachusetts, 56. 
instructions of, to delegates to Con- 
gress, 67. 
COMITY OF NATIONS, 

international, obtains between the 

States of our Union, 393. 
so decided by U. S. Supreme Court, 
393. 
CONFEDERATION, ARTICLES OF, 

these were the first Constitution, 51. 
instructions by States to Delegates 

for forming, 69. 
the motion to form, in the motion for 

Declaration of Independence, 69. 
formed bj' Sovereign States, 69. 
Justice Chase, of Supreme Court, on 

sovereignty during, 78. 
a compact between Sovereigns, 80, 81. 
analysis of, 84. 
defects of, two, 87. 
action of Congress on defects of, 88. 
call for a Convention, 89. 
responses of the States to the call, 

96, et seq. 
the, of the States of Greece, 524. 
the, of the United Netherlands, 525. 
our present government a continua- 
tion of, with new features, 626. 
strength of, 527. 

voluntary consent the basis of all, 
534. 
CONGRESS, 

first, 1774, 56. 

instructions to Delegates to first 

Congress, 57. 
second, 1775, 58. 
Union formed by, 1776-6, 58, 59. 
letter of, in 1777, to the States, urg- 
ing ratification of that Union, 152. 
action on report of Commissioners, 92 
Federal Convention called for the 
sole object of revising Articles of 
Confederation, 92. 
responses of the States, 96, et seq. 
CONNECTICUT, 

response to call for Federal Conven- 
tion, 100. 
Debates in State Convention, 229. 



CONNECTICUT (continued), 

speeches of Ellsworth, Law, and Wal- 

COtt, 228, et seq. 

ratification of Federal Convention, 
227. 
CONSTITUTION OF THE U. S., 557. 

the supreme law of the land, 39. 

Articles of Confederation the first, 51. 

a form of government instituted by 
States, and for States, 125, 126. _ 

the States hold the power in theif 
own hands, 126, 

preamble of, 137. 

federal in its character, 165. 

demonstrations in Boston, B.alti- 
more, and Philadelphia, on its rat- 
ification, 165. 

analysis of, 171. 

treason under, 193. 

why an oath to sunport it required, 
197. 

the new powers delegated under it, 
200. 

upon its face it appears clearly to be 
federal, 203. 

under it sovereignty remains with 
the States, 487. 

this is expressly declared in an 
amendment, 490. 

breaches of, by Northern States, 413, 
496. 
CONVENTION, FEDERAL, OF 1787, 

sole object to revise Articles of Con- 
federation, 95. 

/ompromise in, between the Federals 
and Nationals, 132, et seq. 

letter of to the States, 149. 
CRITTENDEN, JOHN J., 412. 
CURTIS, BENJAMIN R. (Justice U. S. 
Supreme Court), 

on citizenship, 36. 
CURTIS, GEORGE T., 

on Articles of Confederation, 52, 59, 
8L 

on the great compromise of the Con- 
stitution, 135. 

on submitting the Constitution to the 
peojile, 146. 

on Edmund Randolph's opposition 
to the Constitution, 160. 

D. 

DANE, NATHAN, 512. 

DAVIE, WILLIAM RICHARDSON, 

speech in North Carolina Convention, 
286, 289. 
DAVIS, JEFFERSON, 408. 

his resolutions in U. S. Senate, in 
1860, giving an exposition of the 
nature of the government, 409. 
vote by States upon these, 412. 
on secession, 416. 
DAYTON, JONATHAN, 

on the equality of the States, 134. 
DECLARATION OF INDEPENDENCE, 
67, 345. 



650 



INDEX. 



DECLARATION OF INDEPENDENCE 
(continned), 

by separate sovereign States, 68. 

a joint act for the independence of 
each, 80. 
DELAWARE, 

response to call for Federal Conven- 
tion, 105. 

ratification of Constitution, 208. 
DeTOCQUEVILLB, M., 481, 48G. 

on secession, 614. 
DOLLARD, PATRICK, 

in South Carolina Convention, 249. 
DOUGLAS, STEPHEN A., 11. 
DRAPER, JOHN W., M.D., LL.D., 27. 

E. 
ELLSWORTH, OLIVER, 

in Federal Convention, 125. 

his motion to strike out •' National," 

126. 
his two questions to Mr. Wilson and 

Mr. Madison, 134. 
letter on objects of the Constitution, 

153. 
speech in State Convention, 228. 
EMINENT DOMAIN, 

remains in the States, 82, 192, 493. 
E PLURIBUS UNUM, 484. 
EZEKIEL, 

illustration from vision of, 530. 



FEDERAL, 

definition of, 167. 
FILLMORE, MILLARD, 11. 
FRA]S"KLIN, BENJAMIN, 

in Federal Convention, 105. 
his motion for prayers in the Con- 
vention, 129. 
his motion for compromise between 
Federals and Nationals, 131. 

G. 

GALLILEO, 32, 342. 
GEORGIA, 

response to call for Federal Conven- 
tion, 97. 

ratification of Constitution, 226. 
GREELEY, HORACE, 24, 28. 

on secession, 516. 

on treason, 22, 519. 

H. 

HAMILTON, ALEXANDER, 

on the supreiiii" law, 41, 42. 

held the Union to be a confederacy 
of States, 45. 

on power of the States over the Fed- 
eral Government, 127. 

on submitting the Constitution to 
the people, 145. 

in New York State Convention, 281, 
282, 2S3, 284. 

on secession, 502. 
HAMLIN, HANNIBAL, 29. 



HANCOCK, JOHN, 242, 245, 526. 
HARRISON, WILLIAM HENRY, 444. 
HARTFORD CONVENTION, 

principles announced by, 512. 
HAYNE, ROBERT Y, 

letter to B. W. Leigh, 431, note. 
HENRY, PATRICK, 

reasons for opposing the Constiti 

tion, 162. 
in State Convention (on " we the peo- 
ple"), 257, et scq. 
on bill of rights, 264. 
his last speech, 266. 
HILLHOUSE, JAMES, 512. 
HISTORIES OF THE WAR, 24, 27. 
HUDIBRAS, 32. 

J. 
JACKSON, ANDREW, 420. 

proclamation by, 1832, 420, 443. 
his explanation of Proclamation, 462. 
held the Constitution to be a compact 

between States, 464. 
held the government to be Federal 
and the States to be Sovereign, 
474. 
JAY, JOHN, 

speech in State Convention of New 
York, held the government to be 
Federal, 282. 
JEFFERSON, THOMAS, 

opposed to Missouri restriction, 10. 
letter to Madison on new Constitu- 
tion, 93. 
on secession, 502 
on the strength of our Confederated 

Republic, 628. 
on new features of the Constitution, 
94, 135, 479. 
JOHNSON, WILLIAM SAMUEL, 

on the equality of the States, 134. 
JOHNSON, SAMUEL, LL.D., 167. 
JUDICIARY, THE, 

not a new feature under the Consti- 
tution, the same existed under tb» 
Confederation, 86, 193, 201. 
not an arbiter between the General 
and State governments, 377. 

K. 

KENNEDY, JOHN P., 412. 

KENT, JAMES (Chancellor), 514. 

KENTUCKY RESOLUTIONS OF 1798. 
442, 502, 516, 570. 

KING, RUFUS, 236. 

speech in State Convention, main- 
taining that the Constitution is 
Federal in its character, 242. 

L. 
LANSING, JOHN, 280. 

reasons for leaving the Federal Con- 
vention, 159. 
LEE, HENRY, 53, 259. 
LEIGH, BENJAMIN AVATKINS, 

commissioner to South Carolina, 
1833, 430. 



INDEX. 



651 



LINCOLN, ABRAIIA5I, 11, 29, 444. 

on secession, 520. 
LINCOLN. BENJAMIN, 5.S. 
LIVINGSTON, EDWARD, 4G9. 

held the Constitution to be a compact 
between States, 470. 

held that the Supreme Court is not 
an arbiter between the General 
Government nnd the States, 472. 
LIVINGSTON, ROBERT R., 

in New York Convention, 277. 
LOCKE, JOHN, 216. 
LOSSING, BENSON J., 23,26. 
LOWA'DES, RAWLINS, 

in South Carolina Lej^islature, 250. 
LUMPKIN, JOSEPH H., 336. 
LLNT, GEORGE, 27. 

M. 
MADISON, JAMES, 

on the supreme law, 47. 

on the movement for General Con- 
vention, 90. 

■why an oath was required to support 
the Consdtutinn, 197. 

on the general powers of the Con- 
stitution, 199. 

in Virginia Convention, 262. 
MARSHALL, JOHN (Chief Justice), 

on sovereignty under the Articles of 
Confederation, SO. 

on power of the States over the Fed- 
eral Government, 127. 

in Virginia Convention, in reply to 
Patrick Henry, 261, 264. 

on the judicial power, 458. 
MARYLAND, 

instructions to delegates to first Con- 
gress, 57. 

instructions to Delegates for declar- 
ing independence and forming 
Confederation, 69. 

response to call for Federal Conven- 
tion, 107. 

ratification of Constitution, 246. 
MARTIN, LUTHER, 

in Federal Convention moved the 
supreme law clause, 46. 

reasons fur opposing the Constitu- 
tion, 158, 159. 
MASON, GEORGE, 

on submitting the Constitution to 
the people, 145. 

in Virginia Convention, 263. 
MASSACHUSETTS, 

Boston port bill, 55. 

this the moving cause of assem- 
bly of first Congress, 66. 

response to call fur Federal Conven- 
tion, 99. 

ratification of Constitution, 232. 

debates on Constitution in State 
Convention, 238, et seq. 

Fisher Ames maintained that the 
States remained Sovereign, and 
the Senators were Ambassadors 
from the States, 239, 244. 



MASSACHUSETTS {continued), 
Mr. Sumner, 241. 
Mr. Parsons, 241. 
John Hancock, 242, 245. 
Rufus King, 242. 
Samuel Adams, 243. 
action on acquisition of Louisiana 

and Texas, 510, 511. 
action on Hartford Convention, 511. 
MILITIA, 

umler Articles of Confederation, 85. 
under the present Constitution, 201. 
MONROE, JAMES, 63, 444. 

his proposition for mending Articles 

of Confederation, 90. 
in Virginia Convention, 256. 
MONTESQUIEU, 

on a Confederate Republic — this is 
an artificial or conventional State, 
formed by separate and distinct 
Sovereigns, each retaining its 
sovereignty, 169. 479, 482, 487. 
MORRIS, GOUVERNEUR, 

his resolutions fir National Govern- 
ment in Federal Convention, 121. 
MOTLEY, J. LOTHROP, 

on national sovereignty, 65, 118. 
reviewed, 143. 
on accession, 155. 

Washington and Motley at issue, 
156. 

N. 
NEW HAMPSHIRE, 

response to call for Federal Conven- 
tion, 112. 
ratificarion of Constitution, 250. 
NEW JERSEY^ 

response to call for Federal Conven- 
tion, 102. 
ratification of Constitution, 223. 
NEW YORK, 

response to call for Federal Conven- 
tion, 102. 
ratification of Constitution, 270. 
debates in State Convention, 276, 
et veq. 
Robert R. Livingston on Con- 
federation, 277. 
Mr. Williams on consolidation, 

279. 
John Lansing, 280. 
John Jay, 2t<2. 

Ale.xander Hamilton, 281, 282, 
283. 284. 
NICHOLAS, GEORGE, 261, 265,269. 
NORTH CAROLINA, 

response to call for Federal Conven 

tion, 110. 
ratification of Constitution, 285. 
debates in State Convention, 286. 
speeches of Mr. Davie, 286, 287, 
288 289. 
NOY"S MAXIMS. 20. 
NULLIFICATION, 420. 

debates on, between Messrs. Wilkins, 
CalhouD, Grundy, Bibb, and Clay, 
423, et seq. 



fio!2 



INDEX. 



NULLIFICATION [continued), 
settlement of, 440. 
great prosperity of the country that 

followed, 447. 

OATH, ^* 

why required to support the Consti- 
tution, 197. 
ORDINANCE, 

for North Western Territory, 17S7, 

513. 
of Georgia, 1788, 21. 
of Georgia, 1861, 21, 518. 
of nullifioation. 1832, 450. 
OTIS, HARRISON GRAY, 512. 



PALGRAVE, SIR FRANCIS, 

jited by Mr. Calhoun, 370. 
PARAMOUNT AUTHORITY, 

and Sovereignty, Jie same, 40. 
these remain with the people some- 
where, 40. 
allegiance due to, 25, 71, 196, 487. 
resides with the people of the States 
severally, 492. 
PARKER, THEODORE, 

on Webster, 406. 
PARSONS, THEOPHILUS, 236, 241. 
PATERSON, WILLIAM, 

resolutions in Federal Convention, 
329, 339. 
PEARCE, JAMES A., 412. 
PENDLETON, EDMUND, 

in Virginia State Convention, reply 
to Patrick Henry on " we the •»?o- 
ple," 257. 
PENNSYLVANIA, 

response to call for Federal Conven- 
tion, 103. 
ratification of Constitution, 209. 
debates in State Convention, 209. 
speeches of Mr.V/ilson, 210, etseq. 
held the government to be a 
Confederate Republic, 214. 
denied that it was a Consoli- 
dated Government, 222. 
PHILADELPHIA, 

first Congress assembled at, 1774, 56. 
second Congress assembled at, 1775, 

58. 
Federal Convention met at, 1787, 92. 
general mass ratification of Constitu- 
tion, 165. 
PIERCE, FRANKLIN, 445. 
PINCKNEY, CHARLES C, 
on supreme law, 48. 
on adoption of Constitution, as quo- 
ted by Jiidgp '^tory 63. 
letter of Washington to, 156. 
PINKNEY. WILLIAM, 11. 
POLK, JAMES K. (President), 445. 
PRESIDENTS, 

no President elected, from Mr. Jef- 
ferson to Mr. Lincoln, who did not 
hold that the Constitution was a 
compact between the States, 445. 



PROCLAMATION, 

of General Jackson, 1832, 420, 44.'?. 
his explanation of, 462. 

E. 

RANDOLPH, EDMUND, 

in Federal Convention, his plan for 
a national government, 121. 

reasons for opposing the Constitu- 
tion, 160. 

in Virginia Convention, 266. 
RAWLE, WILLIAM, 

on citizenship, 35. 

on secession, 505. 
RESOLUTIONS, 

by Congress, 1776, declaring alle- 
giance due to the States severally, 
70. 

by Congress, calling the Federal Con- 
vention of 1787, 92. 

first three acted on in the Federal 
Convention, 121. 

Mr. Calhoun's, in U. S. Senate, 1833, 
299. 

by Mr. Paterson, in Federal Conven- 
tion, 339. 

by Mr. Calhoun, in U. S. Senate, 
December, 1837, giving an ex- 
position of the nature of the gov- 
ernment, 399. 

vote, by States, upon these reso- 
lutions, 402. 

by Jefferson Davis, in U. S. Senate, 

in 1860, giving an exposition of 

the nature of the government, 409. 

vote by States upon these, 412. 

of Kentucky, 1798, 442, 502, 516, 
570. 

of Virginia, 1798-9, 443, 576. 

by Congress, proposing first amend- 
ments to the Constitution, 490. 

of Massachusetts, on the acquisition 
of Louisiana and Texas, 510, 511. 
RHODE ISLAND, 

ratification of Constitution, 290. 



SECESSION, 

Mr. Stephens's position upon, 21, 
23, 31. 

its rightfulness, 495. 

Daniel Webster upon, 497. 

Joseph Story upon, 498. 

Thomas Jefi'crson u])on, 502. 

Alexander Hamilton upon, 502. 

Prof. St. George Tucker upon, 503 

William Rawle upon. 505. 

New England States on, in 1814, 512. 

De Tocqiieville upon, 514. 

Benjamin Wade upon, 515. 

Horace Greeley upon, 516. 

Mr. Lincoln upon, 520. 

John Quincv Adams upon, 527. 
SHERMAN, ROGER, 

on the equality of the States, 134. 

letter on the objects of the Constitu- 
tion, 153. 



INDEX. 



65S 



SLAVERY (fo called ), 10, 28, 29, 539. 

Prof. James P. Ilalcomb upon, 621. 

Senator Robert Toombs upon, 625. 
SOUTH CAROLIJS^A, 

instructions to Delegates to first Con- 
gress, 57. 

response to call for Federal Conven- 
tion, 111. 

ratification of Constitution, 247. 

debates in State Convention, 249. 
speeches of Patrick Dollard and 
Rawlins Lowndes, 250. 

ordinance on Xullitication, 450. 
SOVEREIGNTY LS THE PARAMOUNT 
AUTHORITY, 25, ct xeq. 

cannot pass by imjilieation, 83. 

resides with the people of the States, 
487, 492. 
STATE SOVEREIGNTY, 

acknowledged to be Sovereigns seve- 
rally by the treatj' of-peace, 178S, 
75. 

so held to be, under the first Con- 
federation, bv the Supreme Court 
of the United States, 76. 80. 

so held to be, under the present Con- 
stitution, by the same Court, 394. 

Webster upon' .^01, 389, 397, 404, 445. 

John C. Calhoun upon, 343. 

Jefferson Davis upon, 4 09. 

expositions of the Senate upon, 
1838 and 1860, 399,409. 

George ^I. Bibb upon, 425. 

Thomas Jefferson upon, 442. 

General Harrison upon, 444. 

Benjamin Wade upon, 515. 
8T0RY, JOSEPH, 

on National Sovereignty, 60 et eeq, 

reviewed, 66. 

his fundamental proposition, 120. 

this proposition reviewed, 121. 

on secession, 498. 
SUPREME COURT OF U. S. 

decision on question of allegiance 
and citizenship, 76. 

on sovereignty daring the Confede- 
ration, 80. 

on power of the States over the Fed- 
eral Goverment, 127. 

held the St.ates to be Sovereign, 394. 

powers of, 576. 
SUPREME LAW OP THE LAND. 

all compacts the, 47, 48. 
SWIFT, ZEPHANIAH, 512. 



TAYLOR, ZACHARY. 445. 
TOOMBS, ROBERT, 417, 625. 
TREASON. 

under the Constitution, 193. 

Horace Greeley upon, 22, 519. 
TREATY OF PEACE 1783, 75. 
TUCKER, ST. GEORGE (Prof.) 

cited by Mr. Calhoun, 363. 

cited by Judge Story, iiJS. 

on secession, 503. 
TYLER, JOHN, 92. 



UNION. 

is of States, not of People; is not a 
nation, 18. 

the first, 19. 

brief historical sketch of, 50, 

difl'erence between our Union and 
the union of England and Scot- 
land, 394, 395. 

great prosjierity of, so long as ad- 
ministered under the pirnciples of 
Jell'erson, 447. 

the States may survive it, but it can 
never survive the destruction of 
the States, 535. 
UNITED STATES, THE. 

a Federal or Confederated Republic, 
170, 478. 

the new features in our federal sys- 
tem, 94, 479. 



VAN BUREN, MARTIN, 444. 
VAN EVRIE, IIORTON & CO., 26. 
VATTEL, 

on Supreme Law, 48. 
on a Federal Republic, 170. 
on a Sovereign State, 204, 487. 
cited by Mr. Calhoun, 364. 
cited by Mr. Webster, 392. 
VIRGINIA. 

first move for a Continental Con- 
gress on account of the assauU 
upon the chartered rights of Mas- 
sachusetts, 65. 
instructions to Delegates to first 

Congress, 57. 
appointment of Commissioners to 

Annapolis, 90. 
response to call for Federal Conven- 
tion. 108. 
ratification of Constitution, 254. 
debates in State Convention, 256, 
et seq. 

Patrick Henry on "We the Peo- 
ple," and Edmund Pendleton's 
reply, 257. 
Henry Lee, 259. 
George Nicholas, 262, 
James JIadison, 262. 
George Mason, 263. 
John Marshall, 261-64. 
Patrick Henry on Bill of Rights, 

264. 
George Nicholas in reply, 265. 
Patrick Henry's last sjieech, 266. 
George Nicholas's re]ily, 269. 
resolutions by, in 1798-9, 576. 
VOX POPULI VOX DEI, 531. 

W. 
WADE, BENJAMIN, 

on State Sovereignty, 515. 
WAR. 

the proximate cause, 29. 
the whole ques.tion open for discas 
sion, 33. 



05-i 



INDEX. 



WASHINOTOX, BUSEROD (Justice), 

in Virginia Convention, 256. 

on Statu Sovereignty, and the difTer- 
cmc between tlie Union of tlicso 
States and the union of England 
and Scotland, 395. 
WASHINGTON, GEOIUiE, 

on old and new Constitutions, 53. 

letter on consolidation of the Union, 
14S. 

on ncocssion, \:>Ct. 

on the new Constiiution. 157. 

styles it the now Conlederaey, 15S, 
16S. 
WEBSTER. DANIEL. 11.51,56. 

in Senate on .Mr. Calhuun's resolu- 
tion, in which he inilintained that 
the Constitution was not a com- 
pact between the States. 3ul. 

ooinmonts on this speoeh, ^'MS. 

modification of his opinions, 389, 
415. 

speech bcfuro tho Supreme Court, 
389. 

letter to the Barings, 397. 

speech at Cuimn 8|iiiiigs, Va., 1S51, 
in which be maintains that the 
Constitution is u compact between 
8tao:i, M-L 



WEBSTER, DANIEL {continued), 
his character. 4U6. 
upon secession, 497. 
WEBSTER, NOAH, LL.D., 167, 484. 
WILLIAMS, MR., 

in New York Convention on oonboli- 
dution, 279. 
WILSON, JAMES, 

on oath to sup]iort the Constitution, 

19S. 
speeches in the Pennsylvania Con- 
vention, 209, et seq. 
held the government to be a confed- 
erate ro)mblic, 214. 
denied that it was a consolidated 
government, 222. 
WORCESTER, JOSEl'U E., LL.D., 163, 
484. 

Y. 
YATES. EDWARD. 

his a<'ci>unt of tho ncti^n of the Fed- 
eral Convention on lirst three re- 
solutions. 121. 
his account of the coiopromiso be- 
tween the Federals aua the Na- 
tionals. I;>1. 
ren.-*on8 for ijuitting tliu Ccnvpntiun, 
159. 
YOUTH'S HISTORY, 27. 



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